Q&A: As lockdown lifts, can your boss force you back to the office?

Inset: Jeanette Wheeler of Birketts on returning to the office

Inset: Jeanette Wheeler of Birketts on returning to the office - Credit: Getty/Birketts

Inch by inch the East is reopening - and before long staff will be having conversations about heading back to the office, as well as the high street. 

Businesses with major hubs in Norfolk like KPMG and Aviva have also said they will be working more flexibly. 

A spokesman for Aviva, which employs 5,000 people out of Norwich's Surrey Street, said: "The vast majority of our people have said they'd like to work more flexibly in the future. The situation will evolve so we need to be flexible. Our focus continues to be on the safety and wellbeing of our people, customers and communities.

“As our people continue to work in a new flexible way we want our offices to inspire creativity and collaboration. Our intention is to invest in our sites to provide a more vibrant, inspiring and flexible workspace for our people."

But some businesses will be looking to return to pre-pandemic operations with staff in the office five days a week. 

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Here, Jeanette Wheeler, partner and head of employment at Birketts, gets to the bottom of whether employers can instruct staff to come back to their desks full time. 

  • Can employers force staff to come back to work as lockdown restrictions ease? 

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Where an employee’s contract specifies that their place of work is office/site based then the employer can require the majority of staff to return to the workplace, provided the government imposed Covid restrictions ease as expected from 21 June.

However, the employer will need to ensure that it has undertaken appropriate risk assessments and has put in place measures to ensure that the workplace is ‘Covid secure’.

There may be some individuals for whom a return to the workplace presents a particular challenge, for example if they have certain vulnerabilities that means they remain at a higher risk notwithstanding the success of the current vaccination programme. Employers should consult with employees in advance of a return and seek to address any individual concerns that are raised, being mindful of the likelihood that many employees will be anxious about a return to the workplace.

Employees with a minimum of 26 weeks’ service are entitled to make a formal request for flexible working arrangements, which could include a request to work from home on a permanent basis.

Employers must respond to such a request within the set timescale and can refuse the request for one of the permissible business reasons including:

  • The burden of additional costs
  • Detrimental effect on ability to meet customer demand
  • Inability to reorganise work among existing staff
  • Inability to recruit additional staff
  • Detrimental impact on quality
  • Detrimental impact on performance
  • Insufficiency of work during the periods the employee proposes to work

In addition a refusal of certain flexible working requests (including for example requests for home working to cope with childcare) can be indirectly discriminatory if the refusal cannot be justified.  

  • Could I be fired for refusing to go back to the office?

Potentially, yes. Fairness of such dismissal will however depend on your individual circumstances and the justification and process the employer has followed prior to your return to work.

Tribunals will expect employers to deal sympathetically with reluctant employees in view of the pressures many have been under in recent months. However as Covid becomes less prevalent and there is increasing availability of vaccination protection the risks and dangers of Covid are receding then the ability for an employee to reasonably refuse to return to the office for health and safety reasons recedes.

A refusal to return to the office simply because you prefer to work from home some or all of the time will generally not be sufficient to prevent an employer from fairly dismissing you for such refusal.

  • If new starters joined during the pandemic on a work from home basis can they now reasonably be told they need to work in the office full time from now on? 

This will depend on what was agreed at the time they started work, and whether it was clear that the arrangement was only on a temporary basis for the duration of the government advice to work from home.

Written contracts of employment must state an employee’s main place of work and this is binding unless something else is agreed. If the individual wants to make a formal request for the working at home arrangement to continue, they will have to wait until they have 26 weeks’ service before submitting a formal flexible working request and as above such request can be refused.

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