In the 4 years since many people started to work from home, the world of work has changed significantly but in some cases employers, and employees, have started to consider reverting back to pre-pandemic working norms. Towards the back end of 2023, a number of large corporations, including Lloyds, Amazon and Google, started to ask staff to return to the office. A survey by KMPG seems to indicate that returning to the office could become more widespread, with 63% of CEOs who were surveyed predicting a full return to working in the office by 2026.
With that in mind, we explore if employers can legally make their employees return to the workplace along with the new rules around flexible working.
Can I legally make my employees return to the workplace?
In short, the answer is ‘yes’. However a broader answer would be ‘it depends’ as it’s all down to your employees contract of employment. Their contract of employment should tell them where their normal place of work is. If it states that their normal work base is your company office location, then you are within your rights to request the employee returns to work in the office as it would be deemed a reasonable management request.
During the pandemic, some employers issued contract change letters, or sent emails to staff detailing the change in their working location when they were working from home. If such documentation exists in your business and it states that the change of working location is permanent, or even open ended, then employees would be able to resist requests to return to the office if they did not want to, and employers would need to enter into consultations with them in order to reach a mutually acceptable arrangement.
Can my employee request flexible working?
If an employee’s contractual terms mean that they should return to work, but they are reluctant to do so, they can make what is known as a ‘flexible working request’. Employees have a number of rights when making flexible working requests and the legislation governing flexible working requests is changing from 6 April 2024, so it is important to have an up to date policy.
From that date, the right to make a flexible working request becomes a day one employment right, instead of employees having to work for 26 weeks before they gained it. Employees will also be able to make two flexible working requests in a rolling 12 month period, rather than just one and employers must respond to the request within two months, as opposed to three months.
If an employee has worked well from home, demonstrated that they are effective and productive in their role and there have been no issues with their work, they could present a compelling case for a flexible working request to be granted. It may be that the employee is happy to work on a hybrid basis and split their working time between home and the office or they might ask to work exclusively from home on a permanent basis. There is a process to go through in order to review the request and make a decision about whether the company agrees, declines, or looks to implement a trial period to assess if the change is viable.
What’s the legal position on declining flexible working requests?
This is a developing area of employment law and a recent tribunal case found in favour of the employer who declined a request. In the case of Wilson v The Financial Conduct Authority, Miss Wilson was a Senior Manager who had worked from home during the pandemic with no issues. Along with other employees, she was asked to return to the office for 40% of her working hours, with the other 60% to be worked at home. Miss Wilson made a flexible working request to permanently work from home, but this was declined and her appeal against the decision was not upheld.
She then took the Financial Conduct Authority (FCA) to a tribunal in which she alleged that the FCA had failed to comply with the statutory procedure for dealing with flexible working applications, and that the decision to reject her request was based on incorrect facts. The tribunal found that the FCA had breached the statutory decision period time limit and they were ordered to pay Miss Wilson one week’s pay as compensation.
However, on the issue of rejecting the flexible working request, the tribunal found in favour of the FCA, stating that their decision was based on correct facts and that they had genuinely considered the merits of Miss Wilson’s application and had clearly set out specific reasons why it may have a detrimental impact. In addition, the FCA had also evaluated those factors against Ms Wilson’s ‘excellent’ performance record while working from home.
Does this mean employers can decline all requests to work from home?
This is one of the first cases to look at post pandemic remote working and although the tribunal found in favour of the employer, in this instance that does not give employers the green light to automatically reject requests to work from home. All requests should be carefully assessed on their own individual merits and circumstances and employers must still follow the statutory procedure and grounds for dealing with flexible working requests in order to avoid claims being brought against them.
Ultimately, as an employer you should aim to maintain positive employee relations. Flexibility in how people work is now seen as a key employee benefit. If you want to make staff return to the workplace, it’s important to have a clear rationale for doing so and where possible, you should try to be accommodating and reach agreement with staff on working arrangements rather than enforcing them. If employers don’t act reasonably, then they could face recruitment and retention issues and potentially even tribunal claims.
Find out how HRX can help
HR software, like HRX can help your business if you need to create a flexible working policy, and any other policies for that matter. Find out more by contacting our HR experts, or see for yourself and sign up for our FREE 30 day trial today!
