Employees returning to the office: The legal considerations

The need for staff to provide a physical presence at an office location is a debate that many businesses are engaged in, and tribunal cases are expected to increase as UK employers push back on remote working.

In May 2024, Manchester United made headlines when it offered an early bonus payment to staff who resigned as part of its efforts to get all employees back into the office, bringing an end to home and hybrid working. 

The club believes that a return to office will bring substantial benefits for individuals, teams, and the wider club while supporting its journey to return to footballing success. The club cited email traffic statistics to staff as the basis for a ban on working from home. 

Some companies are advocating for a full return to the office, while others are enforcing a minimum number of days in the workplace. The number of employment tribunals mentioning remote working increased by 50% in 2022 compared to the previous year.

There are significant tensions between flexible working requests from people keen to secure hybrid arrangements and employers pushing people back into the office. Changes to the flexible working legislation earlier this year are also likely to see this rise further. 

Some employers have become encouraged after an employment tribunal earlier this year rejected the case of a senior managed who sued the city watchdog because she wanted to work from home full time. Elizabeth Wilson, a senior manager at the FCA, had her request quashed by a judge, who said the regulator was within its rights to deny the request. [Link to article to read more about this case]. https://www.birkettlong.co.uk/site/blog/employment-blogs/what-does-the-future-hold-for-flexible-working

One law firm has even started using office attendance as a factor in its partner’s performance reviews, which could have an adverse impact on performance-related pay. This appears to be the latest mechanism in a bid to tackle staff resistance to the return to the office. Some companies even go as far as disciplinary action, such as bonus adjustments and termination for staff that fail to comply with its mandate of a minimum number of days in the office per week. Whilst this is by no means the widespread approach, with only a small section of businesses adopting such direct measures, it does prompt the question as to why employers want staff to be present and whether this can only be achieved through being physically in the office. 

Consultation 

Whilst it is ultimately down to employers to decide the appropriate culture and working arrangement which suit the business needs, consideration should also be taken for its employees when trying to change such working arrangements and how this might be achieved to avoid a recipe for resentment and resignations. A lack of consultation will undermine employee trust and engagement and may lead to people with key skills leaving the business. Therefore, consultation with staff and open discussions shall be key in striking a balance for the business and its employees that meets both the requirement for people to be in the office more often while ensuring sufficient flexibility for employees. 

Legal risks 

Employers seeking to mandate a return to the office 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, both physical and mental, which might include working from home.

Flexible working 

Employers should also consider people’s right to request flexible working, which could include working at home or hybrid working. Following the introduction of The Employment Relations (Flexible Working) Act 2024 employees can make two requests in each 12-month period. The response time for employers is 2 months. Employers cannot refuse the request unless and until they have consulted with the employee. The employee no longer needs to explain the possible effect on the employer and how this would be dealt with. Employers should also understand the negative impact on employee wellbeing and retention if requests are rejected without a valid reason.

Conclusion

Whilst overall levels of home and hybrid working remain high, with a clear shift away from the office as the main place of work for many, it is evident that the debate around a return to the office will continue to rumble on, with each case depending on its own facts and circumstances. 

Birkett Long can assist businesses and HR departments in finding the right balance between office presence and remote work. 

If you have any questions or need support with bringing employees back to the office, navigating flexible working applications, or ensuring your business policies are up-to-date and compliant, please get in touch with the BLHR & Employment Team.