Can I force people to return to office working?

One of the big issues that many companies are beginning to tackle is how to transition their employees back into the office after two years of remote working – some of it enforced through lockdown, some of it, in more recent times, an informal arrangement.

It’s a tricky problem to deal with. There are many reasons why employees may be unwilling to return to office-based working, and while fear of contracting Covid is a legitimate one, it’s probably true of only a small percentage of people.

During lockdown, many people found their work/life balance improved measurably. They may have begun to fully recognise the disadvantages of physically coming to work – workers living in the Home Counties, for example, saved anywhere up to £5,000 on travel, while others began to see the drudgery of commuting.

Then there are employees who genuinely – and perhaps legitimately – feel they are more productive working from home, while others who may have been considering leaving their job because of difficult relationships or circumstances at work were persuaded to stay once removed from that environment.

And on the other side of all of that are the businesses that want their people back in their buildings in order to preserve culture, efficient and effective working practices, and improve communications between teams and functions.

For some organisations that need people to do their job in a specific location because it would be impossible to have any other arrangement – manufacturing, for example – it’s not even an issue to be tackled. But in those cases, it’s likely remote working never applied in the first place.

I started out by presenting the question: can I force people to return to office working. The short answer to that is that, yes, provided their employment contract requires them to work from that location, then yes, in broad principle (bearing in mind individual circumstances may differ and be relevant) you can force them to come back, or risk disciplinary action.

Perhaps the better question, though, is do you want to?

What does the law say?

Currently, people have a right to stay away from their place of work – and would be protected legally if they did – if they have a legitimate concern that to do otherwise would place them at risk of serious or significant harm or danger that they could not reasonably be expected to manage.

Whilst Covid no longer poses the wider threat it once did, there are nevertheless still people for whom the virus poses a serious and significant health threat.

Businesses should not subscribe to the sweeping assumption that the removal of the work from home guidance means everyone is safe.

If an employee is resistant to stay away from the office on grounds of a perceived threat of harm, businesses need to take the time to consult with that individual, understand their concerns and then reach a decision based on individual merit.

Protected characteristics

It’s not just about the material danger posed to an individual by Covid. Many employees – particularly those with disabilities, those who are pregnant, and those with a diagnosed mental health condition such as acute anxiety – are protected by law.

A pregnant employee may have a legitimate medical argument that were she to contract Covid her baby would be put at risk, for example. Someone with acute anxiety may be able to argue that to return to the workplace would exacerbate their condition.

Employers will need to assess the needs of the individual against the needs of the business, and then assess whether continued remote working, or adjusted hours, might constitute a reasonable adjustment.

Careful judgment

Employers need to carefully consider the consequences of trying to implement and enforce an indiscriminate return to work policy.

Quite apart from the legal risks in taking such a course of action, there are other consequences relating to employee brand, team culture, good will, and employee relations to consider.

The key to successfully navigating the return-to-work conundrum is to keep an open mind when consulting employees, ensure concerns are properly heard, and work on achieving mutually acceptable resolutions.

The unique circumstances of each case will often point to the right approach – but any business finding itself in a position where it wants to force the issue with an employee should seek professional HR and legal advice.

If you’d like to find out more about what you need to consider as you manage a return to office working, get in touch to talk about how Constantia Consulting can help you to create the right policies and procedures that protect your employees and your business.