It is clear from the press in recent weeks that there has been a widespread shift in terms of how much homeworking employers are willing to allow and indeed, in some cases, an almost complete volte face – with numerous house-hold name employers reportedly mandating their staff to work four or five days in the office. Towards the end of last week, the BBC reported that Lord Sugar is telling workers to get their (if you’ll pardon the phrase) “bums back to the office”. Indeed, KPMG’s latest CEO Outlook at the end of 2024 revealed that

“CEOs are hardening their stance on returning to pre-pandemic ways of working, with 83 percent expecting a full return to the office within the next three years – a notable increase from 64 percent in 2023”.

The reasons for the expected shift to increased time in the office are fairly obvious and nothing really new – from facilitating better collaboration across teams to ensuring juniors receive adequate supervision, reversing the potential for Friday to become a de facto third weekend day, team spirit, collegiality, blah blah, to name some of the key ones. All very worthy in principle, of course, but we are still left paddling about in the chasm between returns which are expected in the sense of “anticipated” on the one hand and those which are expected in the sense of “required” on the other.

Having understandably let that question slide to some extent during the pandemic and its aftermath, employers must now try to fit their facts into the flexible working regime, the key parts of which (in particular, the legitimate reasons for saying no to homeworking) have remained unchanged throughout. Navigating this has always been a tricky issue for employers but has been made far more so by the pandemic. Understandably there is often resistance from staff. They may have moved out of easy commuting distance of their workplace or made childcare arrangements which will prove more challenging if they have to commute more often, sometimes in reliance on warm assurances from employers keen to ride the mood of the moment that they were happy for staff to do their own thing so long as the job got done. In protesting, many employees argue that during the pandemic they managed to work entirely remotely thanks to swift technological advances, often with productivity gains and certainly without employer complaint – so surely employers cannot now rely on any arguments to do with adverse impact on quality/quantity of work to refuse homeworking now? Although the burden of proof has remained neutral at law, the practical reality is that the argument has moved from the employee having to show that the WFH will work to the employer having to show that it won’t, or perhaps more accurately for these purposes, that it hasn’t.

As KPMG acknowledges in its report, “this year’s findings highlight a widening gap between the expectations of CEOs and their employees… today’s employees don’t just desire, but expect a more agile, flexible working environment and a better work-life balance”. Let us also not forget that studies have shown material gains from an inclusivity perspective due to the increased availability of remote working, particularly for working mothers and those with disabilities who might otherwise have had to leave employment, or not have been able to join in the first place.

Throw into the mix that the basis on which employees have continued to work from home post-pandemic may not always have been properly agreed upon, let alone documented, plus recent changes to the law on the right to request flexible working from Day One and it is understandable that many employers are grappling with next steps.

To assist employers scratching their heads over this thorny issue, we have set out below our Top Five things to think about when considering whether and how to encourage/mandate an increased/full return to the office:

1. Check the contractual basis on which staff are currently working from home, as this will determine any process you have to follow if you decide to bring them back in and also help you to assess how feasible that might be.
   • For example, if employees’ contracts allow for homeworking or have been varied formally or by implication to allow this then, absent any reserved right within that contract for the company to make changes to that arrangement, you would need to consult with staff about any proposed change to their terms and conditions of employment.
   • By contrast, if a company had introduced a remote working policy in which the business expressly reserves the right to make changes depending on operational needs, making changes to arrangements might be more straightforward, at least as a matter of pure contract. Whatever the contractual rights and wrongs, however, you are still going to want to consult, not least because your staff may not agree that these arrangements aren’t contractual anyway.
   • One option might be to announce the change in the hope that most people will agree and then deal with any employees who are not happy/have a different contractual arrangement on an individual basis. The fact that an increasing number of other companies have made announcements about this will perhaps help, as it will not feel totally out of step with the zeitgeist, but there will almost certainly be a group of individuals who will need to be dealt with on an individual basis due to their specific circumstances. But beware doing special deals with objectors – that will just get squarely up the nose of those who did the Right Thing and bit the bullet from the start.
2. Be careful about pushing through the change via dismissal and re-engagement.
   • There has been much less-than-impartial press coverage regarding “unscrupulous” employers using “fire and re-hire” tactics (i.e. terminating the employment of employees who refuse to agree to changes to terms and conditions of employment and immediately offering them re-employment on the new terms) to force through changes to terms and conditions. The fact that it is currently entirely lawful seems to have escaped many of the commentators.
   • The previous government introduced a new Statutory Code of Practice on Dismissal and Re-engagement which sets out the steps employers should follow where they are unable to agree changes to terms and conditions with their employees, and they opt to go down the dismissal and reengagement route. As with many other Codes, an employer’s failure to comply does not in itself give employees or their representatives any basis for a standalone claim, but such a failure will be taken into account if an employee brings one of the claims set out in Schedule A2 of the Trade Union and Labour Relations (Consolidation) Act 1992, e.g. unfair dismissal. Any unreasonable failure to comply with the Code could result in an uplift (or reduction) in any compensation awarded by up to 25%. From 20 January, Tribunals are also able to apply any uplift (or reduction) to any protective award made (where the employer has been found not to have complied with its collective consultation obligations). Although claims for a failure to comply with these obligations are not common, the potential costs of non-compliance for the employer can be significant, with awards of up to 90 days’ pay per affected employee. Following the changes in January, we could be talking about even more significant sums of money, depending on the number of affected employees and the scale of the non-compliance. Employers should therefore ensure they comply with this Code if they end up going down the dismissal and re-engagement route and the collective consultation rules are triggered.
   • The Labour government is proposing to make further reforms in this area under the Employment Rights Bill. 
   • In any event, there may be adverse reputational consequences if this approach is taken, so these should be carefully weighed up (see “Non-legal risks” below).
   • As a result, the breach of contract implicit in mandating a return is best left as a last resort unless business critical, with initial focus on encouraging – wielding a carrot rather than a stick is best.
3. Be prepared for an increase in flexible working requests.
   • Even if the company is able to impose the new policy as a matter of contract, it is very likely that it will receive more or less overnight an increase in the number of flexible working requests from staff asking to be allowed to work wholly or mainly from home.
   • The law changed in April last year to widen the right to request flexible working (including by making it a Day One right, shortening the employer’s time to respond and removing the obligation for employees to give any thought to the potential impact on the employer and how this might be dealt with).
   • Any such request by an employee to work fully or partially from home will need to be duly considered by the company in accordance with the statutory flexible working regime, on a case-by-case basis and on its own individual merits. It will not be permissible for the employer to reject such requests as a matter of course on the basis of its general WFH policy or unevidenced assertions of intangible or anticipated prejudice to quality or output, nor on reliance of generic pronouncements of business leaders at home and abroad to the effect that WFH “isn’t proper work” or that homeworkers are lazy, lack commitment, application, ambition or any of the other old chestnuts which are trotted out periodically to justify imposing attendance obligations which the facts don’t necessarily support.
4. Watch out for discrimination
   • It is entirely possible to refuse a flexible working request lawfully (remember the statutory right is a right to request, not a right to have) and relatively hard for an employee to bring a successful claim, provided the company has followed the process, considered the application on its individual merits and established a sound business reason for saying no.
   • Potentially, the bigger risk is that an individual might bring a claim of indirect discrimination. For example, a policy bringing everyone back to the office may have an adverse impact on women who are arguably more likely to have childcare obligations.
   • This leads to two main issues for employers. First, defending a discrimination claim is harder than defending a flexible working claim, as the burden of proof falls on the employer to show that there was not discrimination, rather than requiring the employee to prove that there was. Second, the employer may need to show that any such policy can be objectively justified – so if there is a non-discriminatory way of achieving the same aim, the employer would need to take that approach instead.
   • In either case, the sensible employer will amass as much evidence as it can that fully or largely remote working has been or will be (as a minimum) sub-optimal. So far as practicable, this should be based on concrete examples of where things have gone wrong in that or any similar case. Ideally, this should have been picked up at the time, but even if it was not, it can still be relied upon. Vague waffling about lack of team spirit and collegiality will not be enough here, any more than the preservation of stereotypes of homeworkers lacking care or commitment.
5. Be aware of the non-legal risks
   • Those risks mainly involve issues of reputation, recruitment, retention, motivation and productivity. There is no doubt that following the pandemic many employees have embraced home/hybrid working and now expect this to be part of a meaningful work-life balance. Where you sit on this issue as a business will depend upon many factors – for example, if you are struggling to recruit the right staff, allowing flexibility/remote working may well be an incentive to attract talent. By contrast, if your business is in cost-cutting mode, you may get fewer protestations from employees if you mandate a return to the office, as they may believe that being present/visible might make them less likely to be made redundant. (Note: the rights and wrongs of this could form the basis of a blog on their own, but for now, this might be the practical reality of how any mandate is received).
   • Against this, however, there are clearly a number of benefits that come with people working together in the office, including improved culture, increased collaboration, better productivity (the productivity argument can go both ways) and enhancing the corporate “glue”. The tragedy of this for employers is that these factors are all completely obvious and yet, at the same time, very hard to prove. As above, the onus is on the employer to address individual applications on their own facts, and so it will always be desirable to start with whether the WFH arrangement sought will work for that employee, and not whether there are intangible and generic reasons which perhaps do not apply to him/her at all.
   • Ultimately therefore, companies need to balance their own specific operational/business requirements and the potential benefits of increased office working against the potential disadvantages, to determine what is commercially best for them. This will differ from business to business and sector to sector.
   • It would also be worth having an eye on what others are doing in the sector.
   • The final outcome might involve a combination of both mandating attendance and incentivising.