19/01/2022

Today we have seen Boris Johnson confirm the removal of the work from home guidance.

This is likely to give rise to questions from employers and employees, so we thought we’d pre-empt things with a brief Q&A.

Can employees refuse to come back to the office?

This depends on what has been agreed during the pandemic. Not many employees worked from home exclusively before the pandemic. This means it’s unlikely that employment contracts will state the place of work as ‘home’.

If your company didn’t work from home before the pandemic and you haven’t made a change to employee terms, working from home has only ever been temporary. In that case, they cannot just refuse and you can tell employees that they now need to return to the office.

What can we do if employees refuse to come back to the office?

If employees are contracted to work from the office and actually refuse to return, it is a disciplinary matter.

Firstly, you should discuss the reasons with the employee and, depending on those reasons, you may be able to come to a compromise. The place of work, however, is determined by the employer, so blatant refusal to return to the office because it’s not perhaps convenient or desirable could lead to dismissal.

Can employees demand to carry on working from home indefinitely?

Employees can make what’s known as a ‘flexible working request’. This can be to work from home. They need to be an employee – not a worker (casual). They also need to have at least 26 weeks’ continuous employment before they can make the request. Employees can only make a request once every 12 months (even if it’s denied). The employee must explain what they would like (for example, to work from home full-time), how they will still perform their role and demonstrate how it won’t affect the team or service levels.

The request can be for a temporary change or a permanent one.

How do employers deal with flexible working requests?

The company has three months to consider the request and if a request is turned down, must provide a reason. There are eight statutory reasons the company can rely on which are:

  • 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.
  • Planned structural changes.

If you would like advice on the removal of the work from home guidance, how to deal with any covid-related employment issue or require general HR/employment support, please contact Laura Franklin.

Alternatively, for unlimited HR advice from an employment solicitor whenever you need it, ask about our Beswicks HR service.