The House of Lords Committee on Home-based Working has recently launched a call for evidence to explore the effects and future development of remote and hybrid working in the UK. It reflects the continuing controversy over whether employers should insist on office attendance.
A number of large employers, including JP Morgan and Amazon, are now reversing hybrid working arrangements and insisting on full-time office attendance. In some cases, return to office (RTO) mandates have led to more than just grumbling: at Starling Bank, it reportedly led to staff resignations, while the Met Police are facing strike action from civilian staff over the same issue.
There isn't an easy answer for employers looking to enforce greater office attendance. From a legal perspective, it's obviously important to ensure that employment contracts and policies are consistent with remote/hybrid working being discretionary and subject to business requirements. But dealing with the paperwork isn't generally the tricky part - it's the other potential fallout.
The possibility of indirect discrimination claims arising from RTO mandates has been widely discussed. The critical element for employers to consider is how they will demonstrate that an enforced return is justified, as a proportionate way of achieving a legitimate aim. It's essential that employers can articulate a clear rationale for RTO requirements, and why the level of attendance required is necessary for achieving those commercial goals. The more evidence employers can marshal to back up their assertions, the more likely it is that they will be able to defend any discrimination or unfair dismissal claims resulting from the change in policy. The Employment Tribunals have shown sympathy in some cases for employers' arguments that in-office working facilitates effective management and supervision, but the quality of evidence is crucial.
It's also important to ensure that the reality matches up with the business rationale. Claims that in-office working is more efficient are likely to be less persuasive if there isn't enough desk space for staff, for example.
Another key element is staff consultation. Employers who have engaged in consultation with staff about changes, and taken feedback on board, are likely to be in a stronger position to defend claims. Genuine consultation (rather than an immediate change imposed without discussion) may also help to avoid widespread dissatisfaction and the disruption caused by mass resignations or industrial action. Employers sometimes express frustration that in-office working, which was the default until five years ago, is now seen as an imposition, rather than a basic expectation of employment. However, in our experience, the most successful RTO exercises are those where the employer acknowledges that there has been a cultural shift, and addresses that head-on.
Finally, employers should keep in mind their obligations to make reasonable adjustments for disabled staff and to deal with flexible working requests in accordance with the legal requirements and the Code of Practice. An overly-rigid approach will increase the risk of potential claims, and that risk will become more acute when the Employment Rights Bill comes into force, as it will oblige employers to deal reasonably with flexible working requests.
With the debates over hybrid and remote working showing no sign of diminishing, the House of Lords report will make interesting reading.
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