Legal claims could follow forced return to offices, says expert

Prime Minister Boris Johnson has announced that the ‘work from home if you can’ directive will come to end when other Covid-19 restrictions are lifted.

Millions of office-based workers have been operating from home since the start of the pandemic 16 months ago.

Emma Williams, an employment law expert at Brierley Hill law firm Higgs, said that most employers will have the legal right to ask their staff to return to their desks full time if they wish.

She expects a raft of legal challenges from people who do not want to return to their pre-Covid working arrangements.

“Employers and employees need to look at their contracts. If there is a place of work clause which states that employees should work in the office, that will generally be enough for employers to force a return," she said.

“If an employee refuses to return to the office it could, ultimately, be deemed an unauthorised absence and disciplinary action could follow.

“That said, I do envisage there being a large number of legal challenges from reluctant staff. The employer needs to provide a safe working environment and some employees may well argue that they feel they are facing a serious and imminent threat to their safety.

“That argument could be used by anyone if they feel sufficient Covid safety measures are not in place, but it’s going to be particularly powerful if there are other issues at play. For example, some people are not able to be vaccinated because of medical conditions, and others are more vulnerable to Covid-19 because of pre-existing medical problems."

Emma expects that medical cases will need to be dealt with between employer and employee on a case-by-case basis and in more complex circumstances professional legal advice may be required.

Any employee who has 26 weeks of continuous service can submit a request for flexible working, which could be an amendment to the number of days or hours worked or the option to work from home for some or all of the week.

The employer must give reasonable consideration to this request and provide a formal response within three months of the request being submitted. If the request is rejected, a business reason as set out in the legislation must be provided.

Emma added: “I think a lot of people have grown accustomed to working from home since the start of the pandemic. For many people, it has helped with childcare arrangements or looking after pets, and so on.

“An employee may well argue that their performance hasn’t dropped since working from home began and, therefore, they should be able to remain at home. That could be a strong argument in terms of flexible working rights. There is also some talk from Government about making working from home a right in the future.

“Above all, I would encourage employers to communicate with their employees ahead of July 19 rather than demanding everyone returns to the nine-to-five immediately – and I think that most will. It’s about maintaining good employee relations and encouraging staff retention.

“Hybrid working patterns are becoming much more common and, I think, will continue to do so.”