Can an employer remove home working overnight?

During the pandemic, many office workers were required to work from home and have continued to do so. Elon Musk controversially scrapped Twitter employees’ right to work from anywhere, a policy which was put in place during the pandemic. With all restrictions now lifted, more UK-based businesses are seeking to revoke remote working and get workers back into the office. There are many reasons as to why employees may not wish to return to pre-pandemic working arrangements. Some may have relocated further away from the office, meaning a long daily commute they would prefer to avoid. Others may have health issues or caring responsibilities.

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What are the legal issues that need to be considered?

It is important to recognise that home working or hybrid working, which started out on a non-contractual or discretionary basis, could become an implied term of the contract depending on its nature and how long it has gone on for. Reversing it would be a breach of the contract and the employee could resign and begin legal proceedings with a constructive dismissal claim.

The law around making a constructive dismissal claim is complex and you can find more information about it on the government website. Employees seeking to make a claim should seek advice and support. For firms such as Employment Law Friend constructive dismissal claim work is very much a part of their daily workflow and there is a wealth of information and guidance available on the website.

Although there is no automatic right to remote working, employment law does offer certain protections, including the right to make a request for flexible working arrangements. Employers must deal with any such request in a reasonable manner and will need to provide evidence of clear and justifiable business reasons for a refusal.

Businesses are required to make reasonable adjustments and failure to do so is a form of discrimination. They need to be aware of employees with specific circumstances, such as health factors or a disability and must ensure that policies do not disadvantage these workers. This could include flexible working arrangements. Failure to do this could lead to an indirect discrimination claim.

Why is it so important to communicate and consult?

There may be a strong business case for wanting workers to return to office-based working, but employers must ensure they communicate and consult clearly with their staff. It would be ill-advised to demand instant changes in the way we saw Elon Musk do and businesses must act reasonably when dealing with their workers. They are far more likely to get employees’ co-operation if they are transparent and explain the rationale behind the change.

Rachel Mathieson, senior associate in employment at Bates Wells says that many businesses have been successful in getting their workers back into the office through collaborative discussions, rather than enforcing change unilaterally. Discussion and consultation also allow employers to emphasise the benefits of office-based working and give employees time to make changes and adjust to the new arrangements.

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Employers should also be mindful that competitors may continue to offer flexible working and should consider how this will impact recruitment and retention. With 57 percent of employees wishing to continue working from home, according to a recent YouGov survey, it is clear that businesses will need to offer incentives to retain talent.