Only approximately 8% of UK workers mainly worked from home prior to the COVID-19 pandemic but since restrictions lifted, 36% of UK workers are still working from home, at least some of the time.

Employers are facing the challenge of deciding how their post-pandemic workplace is going to look:

• How will they offer sufficient flexibility to retain and attract talent while at the same time maintaining their company culture and the benefits of in-person co-operation?
• How will they balance the interests of those employees who want to work from home against those who want to work from the office (but don’t want to be the only one in it)?
• How can they make the office a place that employees want to work from? Should they move to smaller premises or cut their office space entirely?

As well as these practical issues, there are also legal factors for employers to consider.

Full-scale return to the office

As a result of the COVID-19 pandemic, many employees have become accustomed to working full-time from home, meaning that employers looking to enforce a full-scale return to the office may face at least some level of resistance from employees. So what issues are employers likely to face and how should they deal with them?

Employees refusing to return

Unless an employee’s contract states that their main place of work is somewhere other than the office, there is little scope for them to lawfully refuse to return. However, if their place of work was contractually varied during the pandemic, or a remote working policy was introduced, then the wording of that agreement or policy will need to be considered carefully to confirm that the change in workplace was intended to be temporary.

The recent case of Rodgers v Leeds Laser Cutting will have given some comfort to those employers dealing with employees refusing to return to the office on the basis of wanting to avoid catching COVID-19. In that case, the Employment Appeal Tribunal (EAT) ruled that Mr Rogers’ dismissal for refusing to attend his workplace for fear of catching COVID-19 and infecting his vulnerable children at the beginning of the pandemic was not automatically unfair. The EAT’s ruling noted that in principle, the presence of COVID-19 could make a workplace so dangerous that an employee could reasonable refuse to attend, but in the circumstances of the case it had not. Mr Rodgers’ refusal to return to work was in March-April 2020 so it seems even less likely that an employee would be able to succeed in making a similar argument in current circumstances given the lower case-rate and wide availability of vaccines. Nonetheless, employers should take particular care when dealing with employees whose vulnerabilities to, or fear of, COVID-19 means that they could be deemed disabled under equality law and may therefore be able to bring a discrimination claim if forced to return to the office.

Flexible working requests

Employers (particularly those requiring a full-time return to the office) are likely to see an increase in the number of flexible working requests received following the COVID-19 pandemic. The law governing flexible working requests remains unchanged and employers are still able to reject requests on the same eight grounds: 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; and/or planned structural changes. Whilst it may now be more difficult for an employer to argue that, for example, working from home would have a detrimental impact on an employee’s quality of work or performance if they have worked well from home during the pandemic, ultimately the statutory scheme allows employers to make a subjective assessment of the impact of the request and so it is relatively easy for employers to reject requests.

In September 2021, the Government published a consultation paper regarding the statutory framework for flexible working requests. This included proposals to: change the right to make a flexible working request available to employees from the first day of employment rather than requiring 26 weeks’ service (as is the current position); change the eight bases on which a request can be refused; and require employers to suggest alternative arrangements to those suggested by the employees if they do refuse a request. It was expected that the outcome of this consultation would be covered in the Employment Bill, originally promised by the Government at the end of 2019, but the Bill was strikingly absent from the Queen’s Speech on 10 May 2022 so we do not yet know when (or if) these proposals will be introduced.

Full-time remote working

Employers taking the alternative approach of moving from an office-based workplace to a remote model also need to ensure that they have properly considered the legal impact of such a move. For instance, these employers will need to ensure that they update their employees’ contracts to state that the employee’s main place of work is their home address. This could be done by either entering new contracts or asking employees to sign a variation agreement. Additionally, employers should stay mindful of their health and safety obligations, which will continue to apply. In particular, employers should ensure that they are providing adequate support for the mental health of their workforces, as full-time remote working can be difficult, particularly for those living alone.

Employers taking the remote working route should also ensure that they have a clear policy on working abroad. There are significant tax and employment law risks for the employer if its employees begin working from abroad; for example, the employer may become liable to make social security contributions and/or pay income tax on the employee’s behalf in the country that the employee is working from, and any mandatory employment laws of that country are likely to become applicable to the employment relationship. It is therefore best to strictly prohibit this in a written policy. We’d also recommend managers have regular interaction, e.g. by video call, with remote workers to make sure that they know where their teams are. This should help prevent a situation where an employee has been working abroad for months without the employer’s knowledge.

The hybrid approach

Many office-based employers appear to be taking a hybrid approach, and whilst this may seem to be the “best of both worlds” solution, many of the issues outlined above could still be relevant and employers will need to think carefully about how their hybrid work model will look. E.g. Will certain teams come in on certain days? If an employer has down-sized, how will it ensure that everyone has a desk? How strictly will it monitor employee attendance? What will it do if an employee doesn’t abide by its hybrid working policy?

Employers will need to weigh up the benefits of a flexible approach (e.g. attracting/retaining talent and motivating the workforce) with the drawbacks (e.g. less collaboration and learning by osmosis) for their business and should ideally consult employees on this and document the outcome in a clear written policy.

Give employees the choice?

An alternative approach would be to allow employees to decide how they want to work. Law firm, Stephenson Harwood, recently made headlines after it announced that it would allow employees to work from home 100% of the time, but only on the basis that they agree to a 20% pay cut. Any employers opting to take a similar approach should be aware of the risk of discrimination claims from those in protected groups who allege they are disproportionately affected by the policy, e.g. women who are more likely to work from home for childcare purposes, or disabled employees who find it more difficult to travel into the office/ have health issues that make them vulnerable to catching COVID-19 (or other diseases).

Final thoughts

The ability to work flexibly is now increasingly important for jobseekers and having innovative working arrangements can create a competitive advantage for employers, which is particularly important in sectors such as technology where working remotely is increasingly common and the competition for talent is fierce. Perhaps the most important steps employers can take are to consult with employees on, and document, a clear company policy setting out their expectations of employees and explaining fully the rationale behind any change to working practices.