23rd May 2023
According to the Office for National Statistics, before the Covid pandemic only one in eight working adults reported working from home at least once during the previous seven days. This figure peaked at 49 per cent between April and June 2020. It has decreased since then (but not drastically) as employees return to the office, and the figure for January to February 2023 is 40 per cent.
Sarah Everton outlines the contractual and equalities issues that employers need to think about when seeking to make this change and getting employees back to the office.
It is important to understand the contractual position, and the first port of call will be the employees’ contracts of employment. Also, check any relevant correspondence that might have changed contractual terms.
For example, was a change agreed upon by email during the pandemic or after a flexible working request? If so, was an updated contract of employment issued or not?
Even if the employee’s place of work is described as home, hybrid or remote, their contract may give you the flexibility to change it. We can review the documents to clarify the contractual position.
If the employee’s contract gives you the right to change their place of work, this needs to be done in a reasonable way or you could still be in breach of contract. This could give the employee the right to resign and claim constructive unfair dismissal. This means giving the employee fair notice of the change. We suggest meeting with the employee to discuss the proposal with them and consider any particular difficulties the employee raises.
The contractual terms are not the full picture, as some employees will have protection under the Equality Act 2010. Employers need to listen carefully to any concerns the employee has about the proposed changes. For example, working from home and avoiding a commute may help an employee cope with a physical health condition, such as irritable bowel syndrome. Hot-desking in a busy, open-plan office can be a barrier for some autistic employees.
If the employee has a disability under the Equality Act 2010, the employer need to consider if it would be a reasonable adjustment to keep the current home-working arrangements or to adapt the proposed arrangements to help accommodate the impact of the specific disability.
Female employees with the primary care responsibility for a child may need to be near nursery or school at drop-off and pick-up times. Where this is incompatible with a requirement to be in the office during office hours, this could potentially be indirect discrimination. Employers can in some circumstances justify insisting on particular working arrangements.
Once you have established the nature of an employee’s concerns, we can advise you on the discrimination risks and how best to manage them. The key message is that a blanket policy may not be acceptable for everyone, particularly if the rationale underpinning the policy has not been clearly thought through.
If the employee’s contract states that their place of work is home, hybrid or remote and has no flexibility, you will need the employee’s agreement to get them to come back to work in the office.
We can help you set up a process of meetings and prepare the communications explaining what you are trying to achieve and why. This will form a solid basis for the proposed change if the employee maintains their position and does not agree to a change of work base and you have to force through the change. This is called ‘dismissal and re-engagement’ or more pithily ‘fire and rehire’.
This involves dismissing the employee from their existing contract and offering them a new contract with the new work base. Both the process leading to dismissal and the decision to dismiss need to be reasonable or you could have an unfair dismissal claim on your hands. In addition, employers need to be alert to the discrimination risks mentioned earlier.
Following public criticism of recent high-profile, large-scale dismissals of staff, the Government recently consulted on a draft code of practice on dismissal and re-engagement, which sets out additional procedural steps. If this becomes law, compensation for any related tribunal claims can be increased by up to 25 per cent for failure to comply.
We can help you balance these competing interests and help you ensure your workplace remains inclusive. For further information, please contact Sarah Everton in the employment team on her direct line 01782 525012 or email email@example.com. Myers & Co is based in Stoke-on-Trent and offers services to surrounding areas including Staffordshire.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.