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Forced return to work carries legal risks

"Employees may have the right to refuse the change" - ©blacksalmon/Adobe Stock

Leaders who are considering mandating a full-time return to the office, inspired by Dell's move in the US, need to carefully navigate the legal risks.

Just as the ‘new normal’ surrounding work seemed settled on hybrid patterns, there has been a recent spike of large organisations, particularly in the US, recalling their staff to the office full-time. In the UK, a national retailer, Boots, has been the latest big name to order head office staff back to the workplace starting from September this year.

With a growing number of large companies shifting back to pre-Covid working patterns, many businesses are reconsidering the benefits of hybrid or remote working against whether employees would be happier and more productive working under the same roof. However, with most employees having become accustomed to the flexibility and independence that working from home provides, a change could prove unpopular if not handled correctly.

Flexible working has shown itself to be successful, with many workplaces maintaining a remote or hybrid model long after pandemic restrictions were lifted. Subsequently, many employees now expect this option in the majority of workplaces, with around 4 million people changing careers and a further 2 million finding a new job in the same field due to lack of flexible working at their current employer.

Due to the popularity of remote and hybrid working patterns, it’s important that businesses considering mandating a full-time return to the office are careful to navigate the legal risks that come with it.

Read more: Return to the office: what employers are doing to incentivise in-office work

The ease with which a business can implement a change back to office-based work depends largely on what is stated in employees’ contracts. If a flexible, remote or hybrid working arrangement is stated, then the employees have the right to refuse the change, triggering a consultation process with the aim of reaching agreement with employees to the proposed changes. If these procedures are not followed, then grievances could follow and businesses could be sued for breach of contract or other associated claims.

However, just because there is no specific flexible working arrangement stated in an employee’s contract does not mean that a business can make this change without following a defined process. For example, if the arrangements have been in place for a number of years then the employee could make the case that a flexible working arrangement is an implied term of their employment contract.

There is no definitive length of time a policy would need to be in place to make it an implied term. Each case is decided on a case-by-case basis. But the longer a particular arrangement has been in place, the higher the risk of it being held to be an implied term of the contract.

Read more: Return-to-office mandates are failing worldwide, study finds

In order to ensure the transition is smooth, HR business leaders should communicate intentions clearly to employees. Key messages and answers to common questions should be prepared in advance.

Most employees will want to know why the company has made this decision, and the business should be able to justify the change, whether that be improved creativity and collaboration, or to have a more vibrant company culture. Highlighting the benefits the change will have for individuals, as well as the business as a whole, will also help to encourage employee buy-in, and allow for a smooth transition.

Communication is a two-way street. Consulting employees before implementing any changes will allow businesses to test the waters and identify employee concerns early on in the process.

If there is substantial push-back from employees, employers might wish to reconsider their approach or consider what compromises could be suggested to encourage agreement, and try to avoid employee relations problems. This will provide the dual effect of making employees feel valued and listened to, which may minimise any negative backlash.

Following this process also gives employers time to listen to employees who have important reservations about the change, such as how it may impact caring responsibilities or accessibility needs which are protected by law. In these cases, arrangements and reasonable adjustments can be considered to ensure that the employees are properly supported.

Read more: Mandate mayhem: the battle over the return to the office

Employers should also consider how any changes fit in with their current culture, policies and values. If the changes represent a shift away from a previously stated position, employers would be well advised to carefully consider the messaging around this and what steps can be taken to mitigate the potential negative effect which could result from a change in direction. Wider policies of the organisation may need to be reviewed and updated to bring them into line with the new approach the business is wanting to take. 

Flexible, hybrid and remote working has become so ingrained into modern society, that unless there is a genuine reason for not having this policy, this could be an unpopular change for employees – potentially triggering resignations as employees who value the flexibility of the ‘new normal’ look for other, more flexible, work options. It is likely that there will be some employees who simply will not wish to work in business that do not offer a flexible approach and for those employees, a return to the ‘old way of working’ will simply not be accepted. However, to encourage as many people as possible to get on board with the changes, thorough communication prior to, during and after the implementation of any change is key, with particular emphasis on why the move is beneficial for both the business and the employees.

While many businesses continue to offer flexible working arrangements given the clear benefits for both employees and the business, recent trends seem to suggest that some businesses will revert back to the traditional nine-to-five working pattern in the future, with the wider effects on skills shortages or gaps remaining to be seen.

By Danielle Lister is employment partner at law firm, Shakespeare Martineau