Both during and after the pandemic lock downs, much was made of the "new normal" we would all return to. A normal that included promises of permanent remote working arrangements, or at least hybrid arrangements. Yet recent reports suggest that many employers are not only encouraging a return to the office but requiring it. The KPMG 2023 CEO Outlook survey found that 63% of businesses in the UK predicted a full return to in-office working by 2026.
Big tech firms seem to lead the charge back to office-based working. In March 2023, Apple began threatening to take action against employees who did not return to the office at least part-time. A pre–X Twitter then began to require employees to return full time, although possibly not in a manner that most HR professionals in this country would be entirely comfortable with. Amazon were next to go with it being reported that they were starting to track and penalise workers who worked from home too much.
In Britain, since the start of 2024, companies as disparate as Barclays, Boots, Manchester United and the Civil Service have asked employees to spend more time in the office, in some cases seeking a full-time return. Recently a number of large law firms have done the same. "Encouragement" used to bring employees back includes both carrot and stick methods. Offering perks such as free meals, tying eligibility for bonuses to attendance and threatening disciplinary action have been used. In the case of Manchester United workers who do not want to return to office work were offered a cash bonus if they resigned.
Perhaps not surprisingly, a recent analysis of tribunal claims that mention remote working showed a 55% increase between 2021 and 2022. That trend seems set to continue as the flexibility enjoyed since the pandemic is rolled back. While claims made to tribunals around this issue will depend on the particular circumstances, there have been recent cases where high awards of compensation have been made, most notably where discrimination is an element of the claim. For example, in Follows v Nationwide Building Society an employee who was made redundant after being required to return to the office was awarded nearly £350,000 in compensation. In that case, the employee was found to have been indirectly discriminated against by association with her disabled mother, who she was the primary carer for.
In contrast, employers will have been emboldened by the judgment in Wilson v Financial Conduct Authority where a claim brought by a senior manager, after the FCA refused her request to work from home full time, was dismissed by an employment tribunal.
Cases are, of course, fact specific and the outcome of any employment tribunal claim will depend on the circumstances of each case.
Key considerations when requesting employees return to the office
For employers that are considering requiring employees to return to the office there are a number of key considerations that could reduce the risk of tribunal claims. These include: -
- Check the contractual position - is the status quo of remote working a contractual right (either express or implied)?
- Is there a need for formal consultation, either individually or on a collective basis, on changing terms and conditions?
- Do the benefits of pursuing a return to office-based work outweigh the risks, or should some compromise position be considered?
- Consider initial presentation of the message - clearly identify why the return is needed and the benefits.
- If financial rewards or benefits are used to encourage workers to return, ensure that this is operated in a consistent and non-discriminatory way.
- Be aware of any additional reasons an employee may have for not returning to the office, such as a disability that could require reasonable adjustments, or caring responsibilities for a disabled relative.
Remote working is undoubtedly going to continue to be part of the business landscape moving forward, but it will be more suited to some sectors/jobs than others. In the next couple of years, many employers will find themselves tackling both reducing the time employees spend working remotely and handling an increase in flexible working applications. To attract and retain talent, while avoiding pitfalls, employers will need to carefully consider what their business needs to thrive and how best to implement this.
