If Thursday is the new Friday, then presumably Friday is the new Saturday? Perhaps not for staff at Frasers Group, who were told over the summer that the “Frasers Friday” working from home policy would be scrapped amidst complaints from managers that it harmed productivity.
The retailer had found that staff social media profiles demonstrated that employees were relaxing during working time and not treating Friday as a working day, leading the retailer to conclude that enforced office attendance was the best solution. However, employers wishing to take such a robust line face various legal hurdles to overcome and pitfalls to avoid.
In this article, we focus on some of the key questions that employers should ask themselves before amending or scrapping their existing homeworking arrangements.
What are the alternatives?
Employers should consider whether there are any reasonable alternatives that might achieve their desired objective, whether that is boosting productivity or ensuring staff compliance with homeworking or other internal rules.
For example, if there is evidence that the homeworking arrangement is generally working effectively but a small number of staff are misusing the system, an employer may consider taking targeted action against those staff who are failing to comply with the rules. This could involve raising the issue with specific staff informally, initially by reminding them of the homeworking rules and notifying them that failure to comply with those rules is considered a disregard of their contractual duties. If informal action does not lead to improvement, employers may decide to start a disciplinary process for refusal to follow the employer’s lawful and reasonable instructions or to comply with internal rules and policies.
A more targeted approach will avoid staff who are complying with the homeworking rules from feeling penalised by a blanket decision to scrap homeworking, which could negatively impact on employee morale and in turn harm productivity. There is also a risk that overhauling homeworking arrangements for staff who are complying with the rules, seemingly without good reason, could breach the implied term of in every employment contract of ‘mutual trust and confidence’ between employer and employee. This could risk claims from employees for breach of contract or constructive unfair dismissal, which demonstrates why a targeted approach may be safer.
Other alternatives may include increasing supervision and monitoring of work output whilst staff are working from home or introducing greater flexibility of working hours so that staff can decide when to work, depending upon when they are most productive and their other commitments. As discussed below, there are good legal reasons to consider more proportionate approaches.
Are there risks around discrimination?
If an employer does decide to scrap existing homeworking arrangements, then it should consider whether requiring staff to return to the office will impact more severely on those with certain protected characteristics under the Equality Act 2010.
For example, an employee who cares for a disabled relative may have good reason for needing to work from home on days adjacent to the weekend. Similarly, women are statistically more likely to have greater childcare responsibilities than men and the availability of childcare may dictate them working from home on certain days of the week. In such cases, there is a risk of Employment Tribunal claims for indirect disability and sex discrimination claims. At a minimum, employers should consider allowing staff in such situations additional time to make alternative care arrangements before requiring them to return to work.
The risk of successful claims for indirect discrimination can be reduced if the employer has a ‘legitimate aim’ (i.e. a genuine business need) and scrapping working from home on Friday is a proportionate means of achieving that aim (i.e. there is no less discriminatory means of achieving it). Whilst an employer could probably rely on productivity improvements as a legitimate aim for scrapping working from home on Friday, even if there is good evidence of a negative impact on productivity, it could be harder to show that there were no less discriminatory means of achieving the productivity boost. In many cases an Employment Tribunal will expect the employer to demonstrate that it has explored alternative options (such as those discussed above) and the reasons why these were not appropriate.
Employers should also consider whether disabled employees may require individual reasonable adjustments to mitigate or remove disadvantages arising from scrapping working from home on Friday.
Are there health and safety concerns?
The need to risk assess
As with any change to the working environment, an updated workplace health and safety risk assessment should be undertaken to identify any potential hazards and the steps that need to be taken to manage the risks. For example, employers which have engaged in a hiring spree during the Covid-19 pandemic will see employees returning to a busier office meaning the risk of slips and trips could be increased and it may be more important for staff to keep working areas and walkways clear. In addition, with increased staff on-site, employers should think about how to minimise the transmission of Covid-19 and other viruses such as through increased office ventilation or stricter cleaning protocols.
It may also be necessary to undertake individual risk assessments for certain employees, such as disabled and pregnant staff. All risk assessments should be clearly documented and kept as a record.
Requiring all staff to be in the office at the same time on a particular day (Friday), whereas office capacity on other days of the week is, say, around 60%, may have practical implications that need ironing out to allow for a smooth transmission back to office working.
Many employers have reduced their office space as a means of reducing their overhead costs in the face of increased hybrid working, so employers will need to consider whether they have the office capacity and workstations to accommodate all staff being in the office at once. Equipment such as adjustable desk chairs and monitors that may have been distributed to employees’ homes to allow for homeworking may now need to be collected and returned to the office.
Ultimately, if staff are going to be required to spend more time in the office, the process will be easier if the office is a safe and welcoming environment. For ideas about how employers can improve the office working experience take a look at our recent article here.
How do we implement this change?
The starting point – what does the employment contract say?
In many cases, the office will be the specified place of work in the employment contract, making it simpler for the employer to require a return to office working. However, employers should be mindful that new employees hired during or after Covid-19 pandemic may have homeworking rights baked into the employment contract. If that is the case, the employer will need the employee’s consent to vary the terms of the contract that relate to homeworking. An attempt by an employer to unilaterally revoke the homeworking rights in this scenario may amount to a repudiatory breach of contract, giving rise to a risk of claims for constructive unfair dismissal. Equally, seeking to change the contract by firing any non-consenting employees and offering their re-hire on different terms is also fraught with difficulty.
Even if there is no express homeworking right in the employment contract, employers should consider whether the right may be implied into the employment contract by custom and practice. This may be the case if homeworking has become customary in the particular business or industry.
Communication and consultation
As with any change in working patterns which require increased time in the office, engaging with staff early and communicating effectively can go a long way to alleviating concerns and reducing resistance. We recommend:
fully explaining the business need for limiting working from home;
listening to and addressing concerns, particularly from those staff who were complying with the working from home rules and may feel unfairly penalised by the proposed change;
providing evidence of updated risk assessments and explaining the practical steps that have been put in place to ensure a smooth transition to office working on a Friday;
explaining any revised policies and working practices to ensure the health, safety and welfare of all employees; and
allowing staff sufficient time to prepare for the change in working patterns, including making alternative care arrangements where applicable.
Employers should be alert to the possibility that disgruntled staff may raise grievances as a result of the proposed change and ensure that these are managed appropriately under the employer’s grievance policy. Employers should also look out for individual flexible working requests to continue homeworking on a Friday and ensure that they follow the current statutory process and any applicable internal policies to address these. Such requests will no doubt increase if proposals to make flexible working requests a ”day one” right are adopted by Parliament.
Any ongoing reluctance to work from the office on Fridays and, to a lesser degree, Mondays, may be due to employees changing their lifestyles to adjust to hybrid working arrangements as a result of the Covid-19 pandemic. Reduced commutes, increased flexibility, additional family time, and improved wellbeing are all benefits which employees may understandably wish to retain. One way to address this is to highlight the many positives that increased office working has to offer such as available office perks, benefits of face-to-face collaboration, networking and training, and other in-person learning opportunities.
A sustained refusal to work from the office on Friday may in some cases warrant disciplinary action. This may be particularly appropriate in cases where the employee who is refusing to return to the office failed to comply with the homeworking rules.
For a discussion about when disciplinary action may be appropriate, see our article on managing reluctant returners here.
Overhauling homeworking arrangements is not without some challenges for employers, particularly if the arrangement was introduced as a result of the Covid-19 pandemic and has now been in place for a number of years. Where reasonable alternatives are possible, employers would be well advised to explore these to see if their objective can be achieved by more proportionate means.
Otherwise, being alert to the potential pitfalls outlined above and ensuring early and effective communication with staff will help to mitigate the risks of employee dissatisfaction and Employment Tribunal litigation.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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