Can employers force employees to return to the office full time?

The remote vs office working debate rumbles on as employers increasingly restrict the availability of remote working. Earlier this year, Amazon implemented a strict full-time office policy. Other companies, such as Asda and Tesco, opted for a middle-ground approach by setting a weekly quota of office days.

Employers looking to follow suit should review their employment contracts to ascertain what is provided in terms of place of work and the ability of the employer to change it. This is to establish whether the remote working arrangement forms part of the employee’s contractual entitlements.

This will then inform whether the employer has discretion under the contract to mandate an office return, or whether other routes may require consideration – such as change of terms by employee agreement; unilateral variation; or even dismissal and re-engagement. These routes have varying risks, including potential discrimination, unfair dismissal and constructive unfair dismissal.

1. Unfair dismissal

Best practice is to seek employee consent to changes to minimise risk of legal claims. That failing, employers can try to effect the change anyway by:

• unilaterally varying the contract and seeking to rely on the employee’s continuing work as implied agreement; or
• dismissing and offering to re-engage the employee on the new terms (note the Employment Rights Bill 2024, if enacted in its current form, contains very strict parameters on this practice).

However, a unilateral variation will usually constitute breach of contract, to which an employee may be entitled to resign and claim constructive unfair dismissal.

Dismissal and re-engagement will not normally constitute breach of contract (provided sufficient notice is given), but the employee may claim unfair dismissal, notwithstanding that the employer offered continuing employment on new terms.

2. Indirect discrimination

Remote working is commonly offered to employees as a non-contractual benefit under a policy, with the contracts stating the place of work as the office. Employers here will generally be free to implement a return-to-office policy, subject to non-discrimination considerations.

Under s19 of the Equality Act 2010 (‘the Act’), indirect discrimination occurs where a provision, criterion or practice applies equally to all employees but disproportionately disadvantages those a) with a protected characteristic or b) without a protected characteristic but who suffer the same disadvantage.

For example, employees with childcare responsibilities may find complying with a return-to-office policy particularly challenging, potentially amounting to indirect sex discrimination.

3. Reasonable adjustments

Employers are required to take such steps as is reasonable for disabled employees to avoid any disadvantage related to their disability (s20 of the Act), commonly referred to as the duty to make reasonable adjustments. Failure to comply with the duty will constitute disability discrimination.

If remote working would be a reasonable adjustment in the circumstances, an employer would be required to make an exception to its return-to-office policy.

4. Flexible working requests

All employees have a statutory right to request flexible working, such as remote working, notwithstanding the terms of any workplace policy.

Employers can refuse a request on any of the prescribed ‘permitted reasons’ under the Flexible Working Regulations.

That said, where a request relates to an employee’s protected characteristic (e.g. to accommodate caring responsibilities), an employer should also comply with any duties engaged under the Act (e.g. to not discriminate and/or to make reasonable adjustments).

5. Conclusion

Employers planning a return-to-office mandate can mitigate potential risk by:

• reviewing the contractual nature of the remote working arrangements;
• if necessary, seeking employee agreement to the change; and
• implementing robust policies on reasonable adjustments and flexible working and ensuring they are followed.

If you require advice on any of the topics discussed above, please get in touch with our Employment Team.