International Employment Lawyer
If an employer is hellbent on rescinding a remote working policy, how should they go about it?
The first port of call is to check your contract wording, advises Nicola James.
“What do the contracts state as the employees’ place of work and was the home or hybrid working pattern contractually agreed at the time as a variation to those contracts? Even if there wasn’t an express variation to the place of work wording in the contract, employers need to consider whether any policy itself may be contractual – either because it is expressly incorporated into the contract or has become an implied term,” she says.
“Determining whether a policy is contractual or not is not always straightforward – employers can sometimes be surprised by employees obtaining potential rights conferred by informal, non-written policies,” James adds.
But even if the employer has legal grounds to revoke a remote or hybrid working policy, the potential negative impact might outweigh the benefits of in-person working.
“Employees who have become used to remote working may simply vote with their feet and look for a competitor that is offering remote or hybrid working as a benefit,” says James. “Despite the apparent recent uptick in employers seeking to have people return to the office, significant numbers of companies continue to offer employees remote or hybrid working – employers should especially consider what their competitors’ policies are to prevent an exodus of valuable employees to rivals.” The best option is to take a “temperature check” to gauge how employees feel about remote versus in-person working. “Engagement surveys are a great way to do this,” says James. “Each company is different, and so employees’ views will differ from business to business.”
Tone and specificity of the communication strategy is critical when communicating the removal of working from home policies to employees, and employers should expect some pushback.
“Being specific on what the employer sees as the positives and advantages of the return to the office is likely better than relying on conceptual notions such as ‘increased collaboration’,” says James.
Additionally, James cites the risks that a change in policy might discriminate against certain employees. “While it may be possible for employers to show the advantages of a U-turn away from remote working based on identifiable commercial or cultural benefits to in-person working, this may have a big impact on certain categories of workers who rely on home or hybrid working patterns – most obviously those with childcare responsibilities and disabilities, or caring for someone with a disability,” she says.
“While an employer may find that the majority of the workforce returns to former working patterns, implementing a change is likely to trigger a spike in flexible working requests from employees seeking to maintain their current working pattern”. This will become easier for employees in the UK from April with the planned changes to the flexible working request regime, which will allow two requests a year and make requests a day-one right. “Declining such requests may mean employees can no longer do their roles, leading to potential grievances and claims.”
“Once the potential risks have been weighed up, it would be prudent for an employer to consider what options it has to make return-to-office working an attractive prospect to staff, such as appealing facilities and office culture”, says James.
Finally, if the decision is made to implement the change, James advises providing adequate notice to ensure staff have time to prepare for the change – and any specific timings set out in the policies or contracts are adhered to.
