The world of work has shifted to a home-based / hybrid model and employees are reluctant to lose it. So where does that leave employers?
After almost two years of advice to the contrary, government guidance to work from home ended in January 2022. This was more than adequate time for some workers to settle into a commute-free routine.
A long-held belief in architecture, however, is that the studio is the place where creativity thrives and architects produce their best work. Not every worker has a suitable workspace at home and fewer still will have fellow architects with whom to share ideas.
Employers, therefore, have found themselves in a difficult situation. On the one hand, wishing architects to consistently and efficiently produce high quality work, while growing professionally through contact with colleagues; on the other, wanting to appease, retain and attract a talented workforce whose expectations have shifted towards homeworking.
Legal considerations
Before rushing to return employees to the studio, there are some legal considerations employers should be mindful of.
Firstly, there are some limited circumstances in which employees have a legal right to stay away from their workplace. These include where workers have a reasonable belief that returning would put them at risk of serious or imminent danger, which they could not be reasonably expected to avert.
There are specific statutory protections for staff if they are disciplined, dismissed or treated less favourably after having raised reasonable health and safety concerns. Workers may believe having an increased risk of exposure to the Covid-19 virus by returning to the workplace could pose an imminent and serious risk to their health and safety, leading to detriment claims if their employer responds to their refusal to attend the workplace by discipling them or withholding their pay.
Employers should also remain mindful that dismissing an employee who declines to return to the workplace in the circumstances covered by statute risks a tribunal ruling that the dismissal was automatically unfair. In this situation, the employee could be awarded uncapped financial compensation.
In Quelch v Courtiers Support Services Ltd ET/3313138/20, compliance analyst Mr Quelch was found to have been automatically unfairly dismissed after he refused to return to the office. He had explained several times to his manager that his cohabitee was clinically vulnerable and repeatedly raised genuine health and safety concerns. These included that his employer had failed to comply with government guidelines, and that he would increase his exposure to contacts outside his home by sharing an office with colleagues who have school-aged children. Mr Quelch was warned by Courtiers that he would be disciplined if he failed to return to the office and he was ultimately dismissed by Courtiers for what they claimed was gross misconduct.
Mr Quelch brought numerous employment tribunal claims against his employer. The tribunal upheld his automatic unfair dismissal claim, observing that Courtiers had failed to follow contemporary government guidelines that 'Businesses... should make every reasonable effort to enable working from home as a first option'.
As employment tribunal decisions are always specific to the facts of each individual case, differing circumstances often lead to very different results. In the specific case of Courtiers Support Services, the simple fact that there is no longer any government guidance to work from home would likely be relevant if it were to arise today.
Covid aside, employers also need to be mindful that employees could have protected characteristics, such as a disability or pregnancy, which give them additional legal protections. For example, an employee may be concerned about travelling into the office on the basis that they suffer from severe anxiety and commuting at rush hour would exacerbate their condition. Here, it would be advisable for an employer to obtain medical advice.
If the employee is found to have a disability that inhibits them in the workplace, then the employer will have a duty to make reasonable adjustments to alleviate any substantial disadvantages the employee faces. Reasonable adjustments often include changing an employee’s hours to avoid travelling at busy times, allowing them to continue homeworking or introducing some form of hybrid working. If, instead, an employer simply decides to discipline the employee, it could face discrimination claims.
So what should an employer do?
If an employee refuses to return to the office, it’s important to consult with them and find out exactly why. Employers should listen to the employee’s concerns and seek to work with the employee to resolve them together. If an employee has a relevant disability, it may be necessary to make reasonable adjustments. There could also be a health and safety reason for the employee’s refusal, which an employer would need to consider carefully before responding.
Even without a legal reason to consider permitting flexible working, an employer may find itself compelled to do so regardless, as many workers now expect and actively search for jobs that allow them to work from home. Blended working patterns, where the team can divide their working hours between the studio and home may offer the best compromise.
Only after an employer has considered all reasonable options, should it consider disciplining an employee who is refusing to return to the studio. Given the legal risks, it would be sensible for an employer to first obtain employment advice from an experienced legal professional.
Hybrid working policies
Employers who offer staff blended working are likely to benefit from a hybrid working policy, which gives staff a clear outline of what to expect, while allowing managers the flexibility to discuss and agree specific arrangements with staff.
Such a policy can help manage staff expectations, by setting out when a hybrid working arrangement is unlikely to be permitted, since an employer may consider remote working to be unsuitable for some jobs. It can also help maintain productivity, by establishing requirements that those employees who are allowed to work from home must fulfil, such as working to deadlines and effectively managing their workload.
Flexible working comes with significant data protection implications. Employers are required to take appropriate measures against accidental loss or destruction of personal data, as well as measures against such data being unlawfully processed. A hybrid working policy can play an important role in setting out measures workers who are permitted to work from home must take to help keep employer data secure and preserve confidentiality.
What about flexible working requests?
Employees who have worked for their employer for 26 weeks or more have the right to make a formal flexible working request, which, if agreed, would normally entail a permanent change to their contract of employment. An employee could request blended working under the statutory scheme.
Following the pandemic, hybrid working policies have been used to permit blended working patterns on a discretionary non-contractual basis, without an employee having to make a formal statutory flexible working request.
While employers may favour flexibility, this does not mean offering informal flexible working is without risk. Employers should take care to ensure that managers exercise their discretion fairly, consistently and without discrimination. Furthermore, in some circumstances it is possible for an informal flexible working agreement to become an implied term of an employee’s employment contract.
Ultimately, the unique circumstances of each case will determine the best approach. However, given the risks to employers, businesses should exercise caution in reaching decisions and obtain appropriate advice.
Sophie Georgiou is a solicitor specialising in employment law at Buckles Solicitors regional law firm, which has offices in Peterborough, London, Nottingham, Cambridge and Stamford.