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, and the figure for January to February 2023 is 40 per cent.
Many employers now want staff to start working in the office either all the time or more frequently. Reasons for this include concerns about the impact of remote working on company culture; camaraderie; loyalty; learning opportunities for junior staff; supervision; productivity; innovation and collaboration.
Harjeet Nangla, Associate in Raworths Employment team outlines the contractual and equalities issues that employers need to think about when seeking to make this change.
It is important to understand the contractual position, and the first port of call will be the employee’s contract of employment, as well as any relevant correspondence that might have changed or varied contractual terms of that employee.
Even if the employee’s place of work is described as home, hybrid or remote, their contract may give you flexibility to change it. As such, it is important to understand the contractual position for each employee. The employment team at Raworths can help you with this review.
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 find yourself in breach of the employment contract. A fundamental breach of the employment contract could give the employee the right to resign and claim constructive unfair dismissal. As such, understanding how to implement a change will be just as important. For example, before changing the place of work it may mean meeting with the employee to discuss the matter to give both parties the opportunity to consider any particular difficulties arising or connected to the change. It may also include giving the employee prior written notice before making the change.
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, there may be different considerations to take into account for any employees who may have a disability as defined under the Equality Act 2010 and where changes to their place of work may affect their ability to undertake their role. Similar considerations may apply to female employees with primary care responsibilities for a child.
Once you have established the nature of an employee’s concerns, we can advise you on the discrimination risks (if any) 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 provision within it, 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.
If the time has come to get employees back to a buzzing office, we can help you get there. For further information, please contact Harjeet Nangla in the employment team on 01423 726610 or email firstname.lastname@example.org Raworths LLP has an office in Harrogate, North Yorkshire.
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.
Published on 2 June 2023