Returning to the workplace – employment law considerations for employers

27 June 2022

Are there any additional legal considerations around working from home?

Where staff move to working from home on a permanent basis, employers will need to ensure they comply with health and safety obligations and undertake appropriate risk assessments. This is especially important for workers who are pregnant or have a disability. A worker’s home office is considered an extension of the workplace so the same health and safety obligations apply.

It has been reported that some employees who worked from home during the pandemic have struggled to disconnect from work and have worked longer hours. In some cases, this has affected their mental health. Employers will need to address these issues and ensure they are complying with the Working Time Regulations in relation to the maximum working week and minimum required rest breaks. Otherwise they may face claims for:

  • breach of the Working Time Regulations;
  • discrimination;
  • constructive dismissal; and
  • personal injury claims.

Employers should also confirm that their data protection policies and systems are compliant with data protection laws. Policies will need to be reviewed to ensure they adequately cover home working, and that workers understand their own data protection and confidentiality obligations.

Do we need to change staff contracts?

Employers may be considering whether they need to make permanent changes to their employment contracts in order to support hybrid working in their business. This will largely depend on what the employment contract says about the employee’s place of work and if there is any flexibility as to its location. We discuss this further in The hybrid working revolution – do employment contracts now need to change?

Can we dismiss employees who refuse to return to the workplace?

Employees who worked from home during the pandemic may be reluctant to return to the office on a full-time basis – or at all.

Refusing to comply with a management instruction to return to the office/workplace could amount to misconduct justifying dismissal. This is especially true if the employee doesn’t have a valid reason and needs to be in the office to properly perform their role. However, before using this ground to dismiss an employee with at least two years’ continuous service, employers will need to follow a formal disciplinary procedure to avoid unfair dismissal claims.

Even if your employee has less than two years’ continuous service, they may still be able to pursue a discrimination claim if you dismiss them for not coming back to the office when asked to. For example, they may have a genuine medical concern about returning to the office and your adjustments to the workplace do not address this concern. This will be a more challenging argument for reluctant employees now the pandemic has subsided. Similarly, employees could pursue a claim for automatic unfair dismissal relating to health and safety if their employer fails to provide a safe working environment. These claims require no minimum length of service. It is therefore essential that care is taken with the dismissal process and legal advice is considered.

Employers should carefully consider whether a return to five days a week in the office is required. If roles can be performed remotely, ending hybrid working altogether may cause issues with staff recruitment and retention. Bear in mind that your competitors are now more likely to be offering it as a benefit, and many candidates see hybrid working as desirable.

If you have any questions about your staff returning to the workplace, please contact Jennifer Mansoor