This article is the second of our three-part series looking at key employment issues for 2022. The first article is on enhancing the work environment and the third is on company sick pay and unvaccinated employees.
No matter how welcoming an office environment may be, there will no doubt be employees who remain reluctant to return to the office; whether because of ongoing Covid-anxiety, underlying medical issues, or personal lifestyle choices following prolonged periods of time working from home. We suggest below a sequence of steps for employers to take when managing reluctant returners.
Communication & consultation
The starting point will always be effective communication. The more information that employers can provide the better: this should include details of Covid-security measures and the various positive aspects to attending the office outlined in our first article.
Engaging with staff early can go a long way to alleviating concerns and reducing resistance to changing working patterns which require increased time in the office.
It may also be worth highlighting that all employees attending the office will be expected to comply with internal Covid-secure guidelines and any failure to do so will be taken seriously.
That said, any ongoing reluctance to work from the office may be down to employees changing their lifestyles following the repeated lockdowns and working from home periods during the last two years. Reduced commutes, increased flexibility, additional family time, and in some cases improved mental/physical health, are all benefits which employees understandably wish to retain if they can do so without adverse consequences.
One way to address this is through consultation, so that employers can understand specific employee concerns and seek to address them up front where possible.
Setting aside the need for individual reasonable adjustments if an employee is disabled for the purposes of the Equality Act 2010, recognition of personal difficulties can help employees feel supported as companies settle back into their new normal working patterns following Omicron.
As before, it also remains important to look out for individual flexible working requests and ensure that these are properly addressed, following the current statutory process and any applicable internal policies.
Broadly, this involves an employer dealing with a statutory request in a reasonable manner, within a three-month period, and only rejecting it if one or more of eight statutory business reasons apply (such as the burden of additional costs).
Note that the outcome of the government’s recent consultation on flexible working is still awaited. Among other developments, one proposal is an extension of the right to request flexible working so that it applies from day one of employment (rather than after 26 weeks’ service).
When is disciplinary action appropriate?
Attitudes to hybrid working patterns vary greatly across sectors. What works for the media industry, for example, is unlikely to work for the highly regulated financial services industry. Employers are best placed to determine the most effective and appropriate working patterns for their own businesses and that is likely to include increased time in the office now that Plan B measures have been lifted.
If the focus on employee wellbeing fails to lure reluctant returners back to the office, employers may be left with little choice other than a more robust approach. Provided homeworking has not (expressly or impliedly) become a contractual right, employers could consider starting a disciplinary process, based on a failure to follow the employer’s lawful and reasonable instructions and in line with internal policies.
The prospect of disciplinary action (such as a warning, or dismissal as a last resort) may be enough to yield results, particularly if the business need for a return to the office has been well documented and communicated.
What are the key employment law risks?
If an employer does choose to explore the last resort option of disciplinary action, there will be the inevitable risk of damage to the working relationship which in turn, could lead to a constructive or unfair dismissal claim. However, if managed appropriately, it could also achieve the desired result.
The reason behind an employee’s reluctance to return to the office could also relate to a protected characteristic for the purposes of the Equality Act 2010. For example, an employee with a disability (or who cares for a disabled relative) may be concerned about the Covid exposure associated with working in the office and argue that they are being subjected to indirect disability discrimination.
Employers should be prepared for the need to show objective business reasons supporting the decision to require office working, such as client and/or regulator expectations and requirements.
Helpfully for employers, the recent tribunal decision in X v Y clarified that a fear of contracting Covid and passing it on to others is not protected from discrimination as a philosophical belief under the Equality Act 2010. On the facts, the employee’s fear about returning to work was an instinctive reaction to the threat of physical harm and did not of itself satisfy all the criteria necessary for establishing a philosophical belief which is protected in law.
Successfully returning employees to the office may require use of both the “carrot” and “stick” methods of encouragement.
In the first instance, it is advisable to highlight the available office perks, as well as the increased emphasis on employee wellbeing. That is particularly the case when the Covid-related stress of the last two years is taken into account.
If this approach is followed, it may be possible to avoid the “stick” of disciplinary action altogether, thereby minimising the risk of successful employment claims and achieving the end goal of a smooth transition back to your new normal working pattern.
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