When homeworking employees refuse to return to the office

Cabinet Office minister, Jacob Rees-Mogg, recently said that civil servants must return to the office to ensure Government buildings are at full capacity. Given that all the remaining COVID-19 legal restrictions were officially lifted back in February 2022, a full-scale return to the workplace may be unsurprising.

However, workers that have grown accustomed to a commute-free routine may not warm to the idea of returning to the office full-time, instead hoping to retain a long-term flexible working pattern. In some limited circumstances, an individual may also have a legal right to refuse a return to the workplace, so employers should carefully assess each request to work flexibly on its own merits.

What does the current legislation state?

Under the current legislation, workers have a legal right to stay away from their workplace where they have a reasonable belief that returning would put them at risk of serious or imminent danger which they could not be reasonably expected to avert.

There are specific statutory protections applicable to staff that are disciplined, dismissed or treated less favourably after raising reasonable health and safety concerns.

The removal of official work from home guidance has given employers the freedom to encourage staff to return to the workplace. Despite this, employers should not be complacent when asking workers to return. If a worker refuses, it’s important to consult with them individually and find out why, and if there is a health and safety or special consideration that should be taken into account.

Protected characteristics

Some individuals could have protected characteristics, such as a disability or pregnancy, which offer them additional protections. For example, an employee with severe anxiety may explain that their condition would be exacerbated by a requirement to travel to the office.

In this case, an employer should seek medical advice. If the employee is found to be disabled, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages faced by the employee.

Reasonable adjustments may include allowing an employee to continue working from home or altering their working hours so they can avoid travelling at peak times.

Potential consequences

Those organisations that fail to take into account protected characteristics or health and safety concerns, put themselves at risk of serious financial and reputational damage. For example, an employer that ignores a relevant protected characteristic and disciplines somebody for refusing to return could face discrimination claims, which can be costly and reflect badly on the business. 

If an employee is dismissed for refusing to return to the workplace in the circumstances covered by statute, an employer risks an Employment Tribunal deeming the dismissal automatically unfair, and awarding the employee uncapped financial compensation.

In Quelch v Courtiers Support Services Ltd, compliance analyst Mr. Quelch was found to have been automatically unfairly dismissed after he was dismissed for refusing to return to the office, despite explanations to his manager that his cohabitee was clinically vulnerable.

Mr. Quelch brought a number of Employment Tribunal claims against his employer. In reaching its decision, the Tribunal considered that Courtiers had failed to follow the Government’s guidelines at the time that ‘businesses should make every reasonable effort to enable working from home as a first option’.

Employment Tribunal decisions are fact-specific, and so different circumstances can affect the outcome. In particular, the absence of Government guidance to work from home is likely to be relevant if similar facts to Mr Quelch’s case were to arise today.

Create policies and seek legal advice

Businesses should keep an open mind when consulting employees, and listen to any concerns to try and resolve them. In the absence of a protected characteristic or special circumstance, an employer may consider it necessary to make compromises in any event to simply retain staff, since workers may now expect flexible working patterns to continue long-term following the COVID-19 pandemic.

Employers may wish to introduce a hybrid working policy, which allows employees to divide their time between the office and home. With this kind of policy in place, businesses can seek to preserve productivity levels, whilst allowing staff to retain a degree of remote working.

Ultimately, the unique circumstances of each case will determine the best approach. However, given the risks to employers, businesses should always exercise caution before making a decision, obtaining employment advice from an experienced legal team where possible.

About the author: Sophie Georgiou is a solicitor at Buckles Solicitors and specialises in Employment law, regularly advising clients on employment matters including, contracts, handbooks and settlement agreements. She writes regularly on employment law matters.

Author: Editorial Team

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