Mandate mayhem: the battle over the return to the office

Pressure to return to the office full-time is mounting in some workplaces, causing a wave of employees in the US to sue for ‘geographical discrimination'.

While these grounds are unlikely to be taken seriously in the UK, as geography is not a protected characteristic, there are other legal avenues employees could explore when challenging ‘return-to-office’ mandates.

These US lawsuits also clearly illustrate the growing tensions between employers and employees on an issue that could come to a head in the UK in the near future.

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During the Covid-19 pandemic, businesses across the UK were forced to find tools that allowed employees to work remotely.

Since then, much discussion has been had about how this shift was revolutionary, with employees welcoming remote or hybrid working as a permanent change that allowed them a better work/life balance, the ability to juggle childcare responsibilities and increased productivity in certain areas.

Despite this, a recent KMPG survey found two thirds of CEOs are predicting that employees will be back in the office five days a week by 2026.

These results indicate that senior leadership may be out of touch with what their employees want from their workplaces, which could lead to talent retention challenges in the future.

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How and where employees work can quickly become contentious and can lead to employees looking elsewhere.

Therefore, employers should consider carefully whether they actually need everyone back into the office five days a week.

While some tasks, such as those that involve collaboration and creativity are often more effective when done in person, many people report being more productive at home, and flexible, remote or hybrid working is often seen as a ‘work perk'.

Once the decision has been made to recall employees back to the office, employers should consider what measures need to be in place to make this an attractive option.

The three key components that make being in the office an enjoyable experience for employees are often: appealing and functional facilities, an easy and inexpensive commute and a thriving office culture.

To ensure that their workspace is ticking these boxes, employers could consider cycle-to-work schemes or give employees discounted public transport to make commuting to the office easier; facilities could be re-designed to have designated areas for quiet working and spaces for collaborative working, and interesting, relevant training sessions and after work socials could be scheduled frequently.

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Employers should also consider their employees’ contracts when planning a return-to-office policy.

In all employment contracts, there is a designated place of work stated, which in most cases will be listed as the office or headquarters of the business, even if the employee has a hybrid arrangement.

In this case it will be easier from a contractual perspective for employers to recall employees back to the office, as it is harder for challenges to be raised.

However, if the employee has been hired on a remote basis, and the office is not listed as their workplace, there will need to be a formal consultation process and ultimately agreement from the employee to a change to their place of work.

It is also important that employees are given appropriate notice to ensure they can adequately prepare for the return to the office and make commuting or childcare arrangements.

It will also give them time to challenge the change and formally request flexible working if they want to.

While the majority of people will return the office without issue, most workplaces will face a small number who will push back and employees who have been with the company 26 weeks or longer are entitled to formally request flexible working arrangements.

Prior to exploring legal options, employees should try to communicate their position to their employer through the appropriate channels, for example the HR department or a line manager.

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If multiple requests are made in a short timeframe, then an employer may find itself in a position where it wants to agree to some requests, but not others.

While this is possible, it will be a tricky situation to manage smoothly, as an employee’s personal responsibilities – such as childcare arrangements, or having an elderly or disabled dependants – may not be publicly known throughout the workplace.

In a situation like this, communication is key, as it can be easy for employees to jump to their own conclusions regarding the reasons why one person has been granted flexible working over another.   

Communication is key for both employers and employees in this process.

To ensure that a good relationship is maintained with the employee, employers should properly consider the request and clearly communicate the outcome.

This will minimise the risk of disputes and ensure that all employees feel heard, valued and respected.

Nicholas Jones is employment partner at law firm Shakespeare Martineau