Laura Jordan

With the dark days of Covid lockdown now almost five years ago, it’s understandable that many employers are increasingly seeking to address the remote / hybrid ‘home and office’ working model to which many employees have become accustomed. The question is the extent to which employers can now mandate full-time office working, taking account of the legal and practical risks associated with such an approach.

It’s a thorny issue for both the employer and employee. One in which employers must ensure they take close cognisance of contractual terms, current legislation and an employee’s specific circumstances before pushing for all staff to regularly commute to the office. 

Let’s be clear. Some employees (and their employer) may welcome the greater human interaction and structure offered by a full-time return to the office. However, other employees may be resistant to this change, particularly if they have adapted to remote working and made lifestyle decisions based on their current work arrangements. 

Indeed, since Covid, some employees may have chosen to move far from their physical place of work to operate remotely. Some employees even feel a sense of entitlement to continue enjoying the work/life balance of hybrid working. These individuals may feel aggrieved at being ‘forced’ by their employer to revert to the traditional office working environment. 
 
Nevertheless, there are signs that some major employers, including Santander, Asda and Amazon are already pressing ahead with bringing their workforce back to the physical office. 

The legal considerations

Legally, hybrid working is not governed by any single regulation. The most relevant legal framework for mandating a return to the office is the Employment Rights Act 1996, which requires employers to act reasonably in making changes to working arrangements and provides employees with the statutory right to request flexible working. While this right does not guarantee flexible working, employers must consider such requests in a reasonable manner and may face legal challenges if they fail to do so. Mandating office attendance without adequately addressing such requests could lead to claims under the Equality Act 2010, particularly if a decision disproportionately affects employees with protected characteristics.

When hybrid or remote working is specified in an employee’s contract, it sets clear expectations for their working arrangements. If an employee’s contract explicitly includes hybrid working, this typically means that both the employer and the employee have agreed to a flexible working pattern, which may involve working from home or the office. Employers might use this to boost office attendance by requiring employees to come in for a certain number of days each week, arguing that “hybrid” implies at least some office presence.

However, employers cannot simply mandate to employees with hybrid working references in their contracts that they must return to the office five days per week. At the very least, there’s a need for both parties to agree to new terms under the employment contract. This is rarely straightforward. Furthermore, any employer tempted to adopt the ‘fire and rehire’ approach will discover that they must meet strict legal requirements. The Employment Rights Bill (introduced to the House of Commons on 10 October 2024) will also increase the likelihood of such practices facing legal scrutiny and challenge. 

While an employee without ‘hybrid working’ referenced in their contract may seek to argue that it has become an implied contractual term, through custom and practice or a hybrid working policy, employers may assert it was a temporary arrangement they can amend. However, this approach carries risks. As seen already with Amazon’s attempts to increase office attendance, employers need to manage this transition carefully to avoid employee pushback.

Unfortunately, any move to amend an employee’s contract with a view to increasing days spent in the office can risk potential claims being raised, including for breach of contract or constructive unfair dismissal. 

In addition, employees may pursue flexible working requests with their employer to try and circumvent an attempt by their business to increase days worked in the office. Currently, employers can only reject these requests for specific legitimate business reasons. When the Employment Rights Bill comes into effect, employers will also need to provide a ‘reasonable’ justification for refusing flexible working requests. This change will likely pose challenges for employers, particularly in situations where employees have successfully worked from home for a significant period.

The employer must also consider the risks with unilateral enforcement, ensuring any such move avoids the potential for indirect discrimination.

From the above, it’s understandable that some businesses may feel the pendulum has swung significantly in favour of employees when seeking to revisit the issue of working from home / hybrid working. Underpinned by legislation and to eradicate or at least alleviate the sharp business practices of yesteryear, the landscape has changed to try and ensure better protection of employees. 

Mitigate the legal risks

However, in today’s business world where the only certainty is change, it’s almost certain that more companies will push for a return to the office in 2025. As an employer, the following steps are the minimum that should be taken to mitigate the legal risks:

1. Review the employee’s contract: Analyse its terms to determine whether there are grounds to request and expect office attendance.
2. Review any relevant hybrid working policies: Check whether they specify that they are temporary and subject to change.
3. Consult employees: Engage with employees before implementing any changes to their working arrangements. Explain the business rationale and seek their input on proposed changes.
4. Fair process: Follow a fair process and document it. Provide employees with the opportunity to discuss their concerns and work towards reaching a mutual agreement with them.
5. Justify changes: Have clear business reasons for requiring employees to return to the office and document these to mitigate claims of unfair treatment or breach of contract.
6. Negotiate contract variations: If changes are needed, offer a variation of the contract. Formally negotiate the change with employees and obtain their written agreement. Consider adding incentives, such as covering commuting costs or additional office perks, to ease the transition.
7. Prepare for legal challenges: Ensure there is a robust internal process for addressing potential grievances or legal claims.
8. Avoid any potential for discrimination: Be mindful of the risks of discrimination, ensuring that changes do not disproportionately affect those with protected characteristics.
9. Stay informed: Keep updated on the changing legal landscape, especially with the upcoming Employment Rights Bill.
10. What’s more, if an employee has a contract of employment where the place of work is ‘hybrid’ and they are told to come into the office and refuse, it’s feasible they will face disciplinary action for failure to follow a reasonable management request. The key is to ensure any such requests are reasonable and the policy to return to the office environment is justified with alternative courses of action fully explored.

Yet, even taking account of the above, if an employee’s contract states “remote/homeworking”, take note that the employer will have extremely limited grounds on which to bring a fair disciplinary case against that employee. To do so would bring heightened risk of claims for breach of contract, discrimination and constructive unfair dismissal (or breach of the implied term of trust and confidence).

Employers should also be wary of aligning any bonus with presenteeism in the office. While any bonus arrangement will depend on the contractual terms surrounding that scheme and who is eligible, the employer must ensure that the conditions under which it’s paid cannot be construed to be discriminatory. Be careful aligning any employee bonus with more time spent in the office. 

In summary, employers keen to revisit home and hybrid working must ensure their approach is fair and fully complies with the latest legislation and best working practices.

At the very least, if you are the employer, ensure you fully revise relevant policies to make certain they are fit for purpose. I’d recommend that the likes of human resource staff and managers are fully trained in understanding and handling requests for flexible working, Finally, wherever possible, aim to assess all requests for flexible / home working on a case-by-case basis to avoid the risk of claims of discrimination.

Better still, seek expert legal advice to ensure you fully follow and comply with legislation and to help navigate any claims that may arise from the wish of your business to increase office working.

Laura Jordan is an associate at Shoosmiths Scotland