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, there are other legal avenues employees could explore when challenging ‘return to office’ mandates.

During the Coronavirus pandemic, businesses across the UK were forced to find ways that allowed employees to work remotely. Since then, discussions have risen about how this shift was revolutionary. Employees welcomed remote/hybrid working as a permanent change that allowed them to have a better work/life balance, juggle childcare responsibilities and increased productivity in certain areas.

Despite this, a recent Guardian survey states that two thirds of CEOs are predicting employees will return to 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 workplace, which could lead to talent retention challenges in the future.

What do employers need to consider?

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 in the office five days a week.

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 the following:

  • Cycle-to-work schemes.
  • Discounted public transport to make commuting to the office easier.
  • Re-design facilities with areas for quiet working and collaborative spaces.
  • Schedule interesting and relevant training sessions.
  • Organise after work socials.

Planning for the future

Before bringing employees back to the office and planning a ‘return to office’ policy, employers should consider their employees’ contracts. 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. 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 an agreement from the employee to a change to their place of work.

Employers should ensure they give employees appropriate notice to 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.

Dealing with push back

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.

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 these situations, 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. 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.

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Nick has over 25 years experience of working in Bristol as a specialist employment lawyer, dealing with all aspects of employment law. Whilst he predominantly acts for business owners, employers and senior executives he also assists employees with the difficult issues that they can face in their employment. He has extensive experience of advising employers on the strategic employment law issues affecting their businesses, including TUPE, redundancy, collective consultation, executive severance and HR support.

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Published: 3rd November 2023
Area: Employment

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