Ben Willmott, CIPD’s Head of Policy, and employment law helpline provider CIPD HR-inform, look at the questions this has raised around risk and legislation.
Manchester United hit the headlines last week with its push to get all staff back into the office, highlighting the continued debate over the pros and cons of home and hybrid working. This is the latest high-profile example of an employer seeking to end or reduce flexible, hybrid ways of working and mandate more people back to the workplace more often.
It is of course down to individual businesses to decide the culture and working arrangements that suit them. However, for employers seeking to enforce a return to the office there are a number of considerations and potential risks to be aware of when deciding how to manage this.
What’s driving the return to the office?
The first issue is the need to be clear about the purpose of the planned changes to working practices and understand the wider implications for the business and workforce. There may be a belief that a shift back to the office would improve culture, team spirit and productivity but it may also have an unintended impact on recruitment, wellbeing and retention of staff. There should be a discussion about this and the availability of other types of flexible working that might help employees manage their work-life balance and support their wellbeing while also attending the workplace more regularly. CIPD research shows there is often unmet demand among employees for practices such as flexi-time, term-time working, compressed hours and job sharing arrangements, and providing greater access to these can help people manage a return to the workplace.
Getting the balance right
These discussions can help inform the right balance for the business. Once decided, the next step is to consider the approach to take and the extent the organisation should or needs to consult with staff before implementing it.
For some employers this might seem straightforward if employees’ contracts state that their place of work is the organisation’s offices and homeworking was implemented – and clearly communicated - as a temporary measure to be periodically reviewed and subject to reversal. It is a reasonable management request for an employer to ask people to attend the place of work specified in their contract.
Consult with staff
However, where there is a need to change employee contracts to specify their place of work is the organisation’s office there would be a need to consult with staff over this. There is also the possibility that where home or hybrid working arrangements have been in place for some time, these are now regarded as implied within the employment contract through custom and practice. For a practice or working arrangement to be potentially covered by custom and practice it would need to be well-established, consistently applied and known to the entire workforce.
Where agreement cannot be reached through consultation, organisations can in certain circumstances and as a last resort consider the option of dismissing those employees who don’t agree with the proposed contract change and reengaging them on the new terms. However, ‘fire and rehire’ is not recommended and carries significant legal, employment-relations and reputational risks. Any employer considering this approach will from 18 July 2024 have to follow a new statutory code of practice on dismissal and re-engagement and as a first step will need to contact Acas for advice before it raises the prospect with the workforce.
Even if there is no strict legal requirement it is in employers’ interests to consult with staff over such proposed changes and consider refining proposals where necessary. A lack of consultation will undermine employee trust and engagement and may lead to people with key skills leaving the business.
Legal risks over discrimination
Organisations seeking to mandate a return to the workplace should also be mindful of potential legal risks such as indirect discrimination against women or people with disabilities who might be disproportionately affected. Employers also have a duty to make reasonable adjustments to support people with disabilities, which might include working from home. It’s important to remember that disabilities can affect both physical and mental health. And, while the threat has decreased, the legal protection set in place after COVID-19 lockdowns still remains for workers who believe the workplace poses a serious threat to their safety.
Right to request flexible working
Employers may also need to consider people’s right to request flexible working which again could include working at home or hybrid working. Requests must be dealt with in a reasonable manner, assessing the advantages and disadvantages, and discussing possible alternatives. If an employer rejects the request it must be for a number of specific business reason including that it will increase costs or negatively affect the quality of work or performance, and only once they have consulted with the employee. Employers should also understand the negative impact on employee wellbeing and retention if requests are rejected without a valid reason.
Overall levels of home and hybrid working to remain high
While some employers want to mandate people back into the office full-time, the evidence suggests these are in a minority. The latest data from the ONS shows that though home working levels have fallen since the pandemic peak, there remains a fundamental shift away from the office as a main place of work for many people.
Increasingly employees value and expect greater availability of hybrid and other forms of flexible working. Our ageing working population means there will be a growing number of employees with caring responsibilities and working people with disabilities and long-term health conditions. For some people flexible working will be the difference between accessing fulfilling employment and economic inactivity. Organisations that are too prescriptive and rigid about people returning to the office will likely struggle to find and keep staff.
Consequently, it makes sense for employers to consult with staff and find a balance that meets their requirements for people to be in the office more often while ensuring sufficient flexibility for workers.
