Earlier this year, Cabinet Office minister, Jacob Rees-Mogg, urged civil servants to return to the office to ensure Government buildings are at full capacity. A full-scale return to the workplace has been seen across many other sectors and industries, since the remaining Covid-related restrictions were lifted in February 2022.
Despite this, there will undoubtedly be some employees that have grown accustomed to flexible working patterns and are reluctant to give homeworking up completely. There will also be some individuals who have a legal right to refuse to return to the workplace.
Whilst the removal of work from home guidance has undoubtedly strengthened an employer’s position should they want staff to return to their premises, that doesn’t mean that businesses should get complacent about the situation. It is important that employers take the time to carefully consider particular staff concerns, as a failure to do so could result in costly claims being brought against the business.
What does the current legislation state?
There is a limited statutory right for workers to refuse to return to the workplace on health and safety grounds. These include where workers have a reasonable belief that returning would put them at risk of serious or imminent danger which they could not be reasonably expected to avert.
There are specific statutory protections for staff if they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns.
Employers must also be mindful of the fact that some individuals could have protected characteristics, such as a disability or pregnancy, which offer them additional protections. For example, an employee with severe anxiety may explain that their condition would be exacerbated by a requirement to travel to the office.
In such a case, an employer should seek medical advice. If the employee is found to be disabled, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages faced by the employee.
Reasonable adjustments may include allowing that person to continue working from home or changing the employee’s hours to avoid travelling at peak times.
Those organisations that fail to take into account personal circumstances or health and safety concerns, put themselves at risk of serious financial and reputational damage. For example, an employer that ignores a protected characteristic and disciplines somebody for refusing to return could face discrimination claims, which can be costly and cause reputational damage to the business.
An employer who dismisses an employee who refuses to return to the workplace in the circumstances covered by statute risks a Tribunal deciding that the dismissal was automatically unfair, and awarding the employee uncapped financial compensation.
In Quelch v Courtiers Support Services Ltd, compliance analyst Mr Quelch was found to have been automatically unfairly dismissed after he refused to return to the office.
Mr Quelch had explained to his manager that his cohabitee was clinically vulnerable, and repeatedly raised health and safety concerns, including that his employer was not complying with the Government guidelines. Courtiers warned Mr Quelch that a failure to return to the office would result in disciplinary action and ultimately dismissed him for gross misconduct.
Mr Quelch brought a number of Employment Tribunal claims against his employer. In reaching its decision, the Tribunal agreed that Courtiers had failed to follow the Government’s guidelines at the time that ‘businesses should make every reasonable effort to enable working from home as a first option’.
Employment Tribunal decisions are fact-specific, and so different circumstances can affect the outcome. In particular, the absence of Government guidance to work from home is likely to be relevant if similar facts to Mr Quelch’s case were to arise today.
Create policies and seek legal advice
It’s advisable for businesses to keep an open mind when consulting employees. Employers should listen to the concerns of their staff members and try to resolve them. Absent a protected characteristic or special circumstance, an employer may consider it necessary to make compromises in any event to simply retain staff, since workers may now expect flexible working patterns to continue following the COVID-19 pandemic.
Employers could consider introducing a hybrid working policy, to help manage employee expectations, whilst empowering managers with the flexibility to come to arrangements with individual staff members.
Employers have increasingly used such policies since the COVID-19 pandemic to allow employees to divide their working time between home and the office on a discretionary non-contractual basis.
Of course, it remains open for employees who have worked for their employers for 26 or more weeks to make a formal flexible working request. If accepted, this would ordinarily entail a permanent change to the employee’s employment contract.
Sophie Georgiou is a solicitor at Buckles Solicitors and specialises in Employment law, regularly advising clients on employment matters including, contracts, handbooks and settlement agreements. She writes regularly on employment law matters.
Buckles Solicitors is a leading regional law firm with offices in Peterborough, London, Nottingham, Cambridge, and Stamford. It offers a full range of legal services, including: corporate law, commercial law, litigation and dispute resolution, employment law, commercial property law, family law, contentious probate, business immigration and private client matters.