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Coronavirus has resulted in several changes to the way people work. The government’s campaign for people to ‘Stay Home’ has given rise to flexible working and many workplaces have adapted to working from home throughout the pandemic. Now that restrictions have been gradually lifted employers and employees alike may be wondering whether returning to the office is a requirement.
As a first consideration employers wishing to encourage employees to return to the workplace should ensure the workplace is safe and that they are following government guidelines and advice. Any reasonable adjustments should be considered for those employees that may be more at risk or considered ‘vulnerable’, particularly if such vulnerability amounts to a disability under the Equality Act 2010.
Where an employee is reluctant to return to the office employers should consider flexible working arrangements and potential hybrid working. Reasonable options should be explored, and steps should be taken to ensure staff are safe, such as social distancing and regular cleaning. It may be appropriate for an employer to turn down a flexible working request where it will cost too much or there are planned changes to the business. An employer has a duty of care to staff and any customers or visitors to the workplace and risk assessments should be undertaken and employees should be consulted about a decision such as returning to the office.
If all reasonable options have been considered and an employee refuses to return to the workplace it is possible for an employer to start a disciplinary procedure. Employers should attempt to resolve any issues in an informal way before commencing with a disciplinary procedure. To start a disciplinary procedure the employee must be told in writing of the reasons for the disciplinary and the possible consequences and given sufficient time to prepare for the meeting.
Employers should carefully consider the implications of starting a disciplinary procedure in these circumstances. There is a potential for discrimination claims to arise where an employee has a ‘protected characteristic’ (this can include age, disability and race) and reasonable adjustments have not been made. Alongside discrimination claims, unfair or constructive dismissal claims may arise where a fair reason for dismissal cannot be given. Given the lack of current case law within this area, it is difficult to determine whether an employment tribunal would consider an employer to be unreasonable for not allowing an employee to work from home where they have previously done so successfully. A dismissal could be classed as an automatically unfair dismissal where action has been taken over a health and safety issue and an employee are dismissed.
Employees should carefully consider bringing these claims as there is no guarantee they will be successful even in situations where it would appear likely that they have a case. In particular, cases of constructive dismissal are extremely hard to prove as the employer’s actions must be seen to have resulted in causing a detrimental effect to the employment contract.
It should also be considered that all employees have the right to make a flexible working request once every 12 months if they have worked for the employer for a period of 26 weeks and this request could include remote working. These requests must be considered within three months and where an employer rejects a flexible working request it must be for a business reason as set out within the legislation which could include a detrimental impact on quality and performance or the ability to meet customer demand.
Given the above, it appears unlikely that an employer would be able to concretely require employees to return to the office where there are other reasonable options available such as hybrid working or working from home unless this is likely to have a detrimental effect on the business and the refusal can be seen as fair in the circumstances.
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