BLOG: Reluctant Returners? A guide for employers

Some employers are still having headaches with employees reluctant to return to the office.  Luke Menzies discusses your options.

Even though we’re many months down the line from the withdrawal of the pandemic advice encouraging us all to “work from home if you can”, some employees are not keen to come back.

Times have certainly changed.  Employees in the 18-24 age bracket really don’t want to work full-time in the office, that much is obvious.  With the approach of Winter, it’s expected that many of them may yet return once they see their energy bills!  However, there will remain a section of employees who really don’t want to come back to the office, despite employers insisting it’s important and/or necessary that they do.

What can employers do and where do they stand?

This is certainly a difficult area for employers to navigate and we’re always mindful that every situation differs.  There are some fundamental considerations to keep in mind:

• Generally, it is for the employer to decide where work should be done. But at the same time, it’s important to be able to articulate the business case for why working from the office is necessary/important.  If you can and do, it is relatively low risk to insist someone returns to office working, now there is no longer a pandemic emergency.
• Try to avoid applying and enforcing blanket policies which require everyone must return to the office without exception.  In this post-pandemic world, where even Employment Tribunal judges have become used to mostly working from home (having never thought could be possible, pre-COVID), you will be expected to consider individual circumstances and show some adaptability, especially in the following situations (and taking legal advice in some cases):

1. Employees with young children:

Might there be a sex discrimination or disability discrimination risk?    Home-working does not have to be permitted merely for childcare purposes, because your employees should be actually working at home rather than caring for their children at home.

But for parents who may have become used to mixing working from home with childcare – especially those with pre-school age children who are able to save a fortune on nursery/childcare fees by keeping them at home while they work, a sudden demand for them to return to the office might feel Draconian and financially impossible.

It’s possible that a working mother might have a potential indirect sex discrimination claim, arising from their childcare responsibilities, if they feel particularly poorly treated compared with other types of worker.

2. Employees with a medical condition that makes them (or someone they live with) vulnerable:

These are the type of employees who were ‘shielding’ during the pandemic.  Perhaps an argument may still be made that the workplace is unsafe for them?  Although it’s hard for them to now prove a ‘serious and imminent’ danger, COVID-related Employment Tribunal cases reiterate that a proper, documented risk assessment (and mitigation for any risks) is your safest route here.  This may also involve a disability discrimination risk.

3. Post-COVID anxiety and other mental health problems:

Some individuals have been left with real mental health issues and considerable levels of anxiety when it comes to the idea of working in an office with lots of other people again, and perhaps commuting on public transport.  Others may have other mental health problems arising from personal circumstances.  A sudden request for them to upend their current daily routine and return to the office might be more than they are capable of and/or could make them (more) ill.

Now that we know that working from home for many people is actually quite viable on the whole, employers will need to have considerably stronger arguments to insist upon a return to the office for someone who has mental health reasons for finding that hard.  Again, this might well involve disability discrimination issues, alongside the need to simply be a caring employer.

Contractual issues to consider

Many smaller employers have not adjusted their staff employment contracts to reflect their updated working arrangements.  Employees who have mostly or entirely worked from home since lockdown may be able to bring the legal argument that working from home has become a contractual right for them, based on ‘custom and practice’.  The longer someone works from home post-pandemic, the more this argument holds water.  However, if you’ve kept talking to employees about returning (even if they haven’t yet returned), that will definitely be in your favour here, and make it harder for a ‘custom and practice’ argument to hold water.

Employers will have a stronger hand here if your contracts contain a mobility clause, meaning you have the flexibility under the ‘place of work’ clause to change the location of their workplace.  You still need to act reasonably here, which is likely to include consultation and a reasonable amount of advance notice.

Dismissal?

Dismissing someone because they keep refusing to return to the office may potentially be fair.  The obvious ‘fair reason for dismissal’ options here are either misconduct (repeated refusal to comply with a reasonable management instruction to work from the office).  Perhaps in some more complicated cases the ‘some other substantial reason’ option might be a better choice, such as if the employee’s lifestyle or personal commitments simply don’t allow a return to the office.  There might occasionally be a good basis for using the ‘capability’ reason if ill-health makes it hard or impossible to return to office working.

Be mindful that, in each case, an employer will always have to prove the dismissal reason that they choose to adopt, will need to show that a fair procedure has been followed and also show that the choice of dismissal was a fair and reasonable decision in all the circumstances of the particular situation.  Lots of careful thought, consultation, frank discussion and genuine consideration of the alternatives must be shown to have taken place, along with proper investigation of the true impact on the organisation of the employee either continuing to work from home or returning to the office.  (Just because the CEO may be insisting that everyone ‘needs’ to return to the office, can you actually muster the facts and logic to support that view?)

Flexible Working Requests

Finally, do keep your eye out for any statutory flexible working applications.  New requests for flexible working will often be informal but sometimes an employee will make a statutory request.  This may well be the case if an informal request is turned down.  Work location can be part of (or the whole of) a statutory flexible working request.

The law continues to develop

Employment Tribunal judgments from the pandemic and post-pandemic periods continue to emerge in the case reports.  Some of these do concern employees returning to the workplace after a lengthy period of not doing so.  We expect considerable developments in the case law around work location over the next couple of years.

We’re here to help!

Every employee’s situation is different, so seeking advice on your own circumstances is highly recommended.  We’re here to support you, with any question large or small.