Can my employer force me back to the office?

If it is a ‘reasonable management instruction’ it may be difficult to refuse to return the office.

Whether employers can require employees to work in the office will depend on what the employment contract says, and if it’s a “reasonable management instruction” then it may be hard to refuse.  It will also depend on any factors which make it difficult or even potentially discriminatory to force a particular employee back to the office.

Some employers are simply mandating office working, others are trying to tempt staff back with better terms like increased bonus availability for being in the office more often. Whether those terms are discriminatory remains to be tested.

What do we mean by a return to the office?

In this blog, when we talk about returning to the office we mean various things. Now the “work from home” rules that applied during the pandemic are consigned to the past, we’re seeing increasing reports of employers mandating a return to the office, and using various tools to pressure those employees who may be less willing to go back. Employees may have been working entirely remotely, or on a hybrid basis, whether because of the pandemic or not – some employees’ terms are based on them working remotely, or on customer sites, or hybrid.  It’s hard to list all the possible permutations.

So, what we’re talking about is any change that means employees are being asked to spend more time in the office.  That could be no more working from home at all, or that instead of coming in once a week, you’re being asked to work in the office 2 or 3 or more days a week, or a given number of times a month.  In some organisation, certain days are mandated core office working days, when team meetings are booked and all hands are expected to be physically present.

Can I refuse to go back to the office?

Maybe.  Maybe not.  Read on while we explain.

If your contract of employment says that your place of work is your employer’s office, then your home isn’t your place of work under your contract.  So, your employer can call you back to the office at any time, because it’s your place of work. The starting point is that it is a reasonable management request for the employer to ask you to work where your contract says you work.

But there are various factors that need to be considered – it’s not always completely straightforward.  If you’ve been working productively from home or on a hybrid basis for some time, it’s usually going to be reasonable (if not a requirement) for the employer to consult and discuss things with you rather than imposing a change with immediate effect.

For instance, is the office a safe environment for you to work in? Using the pandemic as an example here, if your health, or that of someone who lives in your household, is at risk by your travelling to and working in the office, it may be possible to say you have to continue working from home. This will be much less common now we’re past the pandemic, but COVID-19 isn’t the only health and safety risk out there.

If you have a disability, a “reasonable adjustment” in the context of the disability discrimination regime may be to permit you to work from home even non-disabled employees are called back to the office.  Remote working has opened up opportunities not previously as readily available to disabled people, and has opened up employers’ eyes to better ways to build a diverse workforce.  A return to office mandate may be discriminatory if it isn’t feasible for a disabled employee to travel to or work in the office.

Similarly, if a woman (and it’s usually women) can’t meet her childcare commitments and/or contractual working hours when the time taken up by a commute is added into the equation, then she could have to reduce her hours (and pay), or even ultimately be forced out of the job. That sounds like discrimination and/or unfair dismissal, doesn’t it?

If you have a flexible working arrangement in place, that should set out your terms and conditions of employment, including your place(s) of work – so if you’re working on a hybrid basis and need to work from home on certain days due to childcare (or whatever), the arrangement should specify this.  A flexible working arrangement is permanent.  As such, a change to that arrangement to alter your place of work is a contractual change, just as with any other change to your contract, and shouldn’t be imposed without consultation.

Can an employer refuse working from home?

As with a mandated return to the office, yes, an employer can potentially refuse home working.  It will again depend on your role, current working arrangements, and various other factors.

If you’ve got a flexible working arrangement, it’s more difficult for an employer to seek to change your working pattern in any way, including by refusing to let you (continue to) work from home.

This is because the arrangement was (unsurprisingly) agreed to enable you to work flexibly.  Most people ask to work flexibly to better care for children or adults, and as such the arrangement tends to touch on at least one protected characteristic for discrimination purposes, usually sex or disability. As such, unless the employer can show one or more of the statutory reasons to refuse it (or, in this case, change it), then logically any change imposed unfairly risks being discriminatory.

If a return to the office doesn’t work for you, you may want to make a flexible working request with a view to avoiding or at least creating a workable working pattern in line with your other commitments.  Remember though that a flexible working request is just a request – the employer can reject it for one of 8 set reasons.

What are the laws on working from home in the UK?

Various bits of legislation are relevant to working from home, including the various health & safety laws, the Working Time Regulations, and the flexible working regime of course.

Employers must ensure that employees have a safe working environment.  For instance, work station assessments should be conducted, and employees should be given any equipment they need to work safely at home. We heard a lot about boundaries between work and home life becoming blurred during the pandemic – employers should ensure that employees don’t work more than 48 hours a week (unless they’ve agreed to) and should ensure that they allow down time away from work, for instance by ensuring that employees log off.

Likewise, employees who work part time or flexibly shouldn’t be expected to work on their non-working days.  Just because you live within touching distance of your workspace, doesn’t mean you can or should be expected to be online 24/7.

Subject to your contract of employment, your employer may be able to force you to work from home.

Can I make another flexible working request?

If you made a flexible working request within the last 12 months, under the current regime you have to wait until 12 months have passed before making another one.  However, with changes expected to come in from July 2024, you’ll be able to make two requests in a 12-month period. That will make it easier to ask again if your request was refused, or to ask to alter your arrangement if circumstances have changed.

What next?

The topics covered here are part of a wide range of issues relating to where, how and when we work now. Employers have expensive office space that they want to use; some employees prefer being with colleagues; but some employees need to be closer to home and feel that they’ve proven themselves.

Employers can make a return to the office more attractive by thinking in new ways about the purpose of being there: what can be done from anywhere vs what is best done face to face? How can everyone make the best use of their time across the week? What facilities can they offer to make the office work better for their team – not just free fresh fruit, but things like introducing different spaces for different types of work.

There will undoubtedly be some shaking up of arrangements, departures (voluntary or not), and reforming of yet another new normal.

If you feel that you’ve been treated unfairly in relation to your working pattern or place of work, get in touch with our expert solicitors at employment@Qlaw.co.uk and we’ll arrange a chat to talk through how we can help.

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