The big return to the office

There is currently much discussion about employers mandating a return to the office, either full-time or for a set number of days a week. The trend is growing, with some employees resistant to the change, having grown to like the opportunity to work from home regularly and the flexibility that it brings.

Impact of Covid on work culture

Covid and the requirement to stay at home lead to a massive transformation in the world of work, with many of us becoming home workers overnight. We became paperless, relied on Teams or Zoom to communicate with colleagues, clients and business contacts, our offices were left empty, and we did not have to commute to the office.

It was a traumatic time, not least because of the people we lost during the pandemic, but we have come through it, we adapted, and in lots of instances, productivity was maintained. Employees have got used to working on a hybrid basis, some days at home and some in the office and that flexibility has helped us manage our personal lives in relation to children, elderly parents, dogs, etc.

Many businesses are thriving with the hybrid model they say their productivity has not suffered and, in many instances, has increased, they have happy employees and therefore there is no need to force employees back into the office. Some businesses have even got rid of offices all together, with others able to downsize.

A push for a return back to the office

However, there is a backlash and many of the big beasts in the business world are mandating that their employees return to work. Companies like Boots, Amazon, J.P. Morgan, Citigroup and ASOS rely on the arguments of company culture and collaboration.

Amazon has coined the phrase “invent, collaborate and be connected” in their push to get back to work and ASOS takes the view that virtual meetings are detrimental to company performance.

It seems many businesses want:

• In person collaboration
• An “office first” culture
• Better in person training especially for junior employees including on the job learning and mentoring
• Connection and interaction to improve wellbeing and mental health
• Utilisation of expensive office space and equipment
• An increase in productivity
• Consistency and a fair approach for all

Many businesses have concluded that this can only be achieved if employees are present in the office more regularly, whether that is a full 5 days a week or with at least some physical attendance at a place of work.

Some employees are however resisting, refusing to accept their employer’s reasoning, and there has even been an incidence of industrial action in the public sector.

Strategies to encourage office attendance

To address these concerns, businesses are using a number of tactics to make attending the workplace more attractive including:

• State-of-the-art offices, warm in the winter and cool in the summer
• Social events and good quality interaction with colleagues
• In person training and development including mentoring and coaching
• Flexibility around core hours

Some businesses are even offering other incentives which carry an element of risk:

• Bigger pay rises for those who come into the office as against those who do not
• Promotions and/or cash bonuses for those who turn up
• Cash bonuses for those who do not want to turn up as incitement to resign

What can employers do to mandate a return to the office?

1. Review employment contracts

The starting point as always is to review the employment contract and any subsequent amendments or variations. The contract will state the place of work, and it will be helpful if this states the office premises. If that is the case, the business can provide a reasonable management request for its employees to attend the office for a certain number of days a week in accordance with contractual terms. A failure may result in disciplinary action, although this can of course be challenging, especially in respect of a good employee who believes he or she can be just as effective working from home.

2. Consult employees of changes

If the contract is not clear or if there has been agreement that an employee can work from home for a set number of days which the employer now wants to change, the employer will need to consult with the employee with the aim of reaching agreement to change contractual terms. If this is a large-scale consultation, this may require collective consultation. The employer will need to consider what flexibility it can offer in the hope the employee will agree to a change to their terms and conditions and return to the office for the days required by the business. This might relate to flexibility around core hours, school pick up and drop off times, school holidays etc.

3. Fire and re-hire as a last resort

If agreement cannot be reached to change contractual terms, as a last resort a business may consider fire and rehire, but the net is closing on this option with recent and anticipated reforms and it runs the risk of both employment law claims and reputational damage.

4. Custom and practice

An employee might run the argument that the right to work on a hybrid basis has become contractual through custom and practice. If they can show that the new working arrangement has been in place consistently, is well established and known, they might have a good chance of successfully arguing that their right to work from home is an implied contractual term. Given the changes through covid, where nothing was stable for long, this may however be difficult for them to prove.

5. Flexible working requests

Many employees will lodge flexible working requests. Some businesses will automatically say no and take the risk of tribunal claims for constructive dismissal and discrimination. Others will review and consider the request and still say no but rely on the statutory reasons for saying no. Remember to comply with the regulations and be aware changes are expected in this area.

6. Consideration of a disability

Where employees have a disability, there will need to be a consideration of reasonable adjustments separate to a flexible working request.

In conclusion

• Make it clear and understandable what the business reasons are to mandate attendance in the office
• Think about what will make it attractive for staff to be in the office
• Consult and try and get staff to agree
• Give staff time to make alternative arrangements for child care etc
• Build in flexibility such as core hours
• Think about the cost of hiring people or losing talent because a mandate to be in the office
• Accept the risk of tribunal claims​​