The COVID-19 pandemic forced a rapid shift towards remote working, forever altering the recruitment and employment landscape.

In the wake of the COVID-19 pandemic, remote work became a necessity for many businesses, and with it, the landscape of recruitment and employment changed overnight. Businesses across the country suddenly had access to a whole host of candidates who could be located anywhere and candidates had the opportunity of a big city wage, without the big city commute.

However, as we move forward, employers are increasingly reassessing their stance on remote working, prompting a surge in employment disputes as remote workers who live hundreds of miles from a physical office face barriers like commuting costs and childcare complications. What then can employers do if they want or need employees to return to the workplace but the employee refuses?

Employment Disputes on the Rise

The inevitable post-pandemic place of work dispute is now on the rise as employers move towards restoring pre-pandemic working conditions. This shift in attitude requiring a return to office work has led to a large number of employees now seeking legal advice on their rights.

The starting point will always be what has been agreed upon in the contract

Under section 1 of the Employment Rights Act 1996, employment contracts must define the individual’s usual place of work or if required to work from various locations an indication of this and the address of the employer. If the place of work is listed as an office, then the default position will be that a request to return to office work is likely to be valid. If, however, the contract defines the individual’s usual place of work as their home address, then contractually the employee has no obligation to comply with your request to return to the office.

The Importance of Clear Contracts

Poorly drafted contracts or variation letters are what often lead to a dispute as ambiguous drafting can be open to interpretation. A poorly drafted letter can inadvertently make changes the employer did not intend. The importance of careful planning, early legal advice and clear drafting cannot be understated and will in the long run save time and money for employers.

For some employers, this will be a cautionary tale of the benefits of careful drafting. Having a solid foundation (the employment contract) is key in defining the employment relationship and avoiding future disputes. Similarly, documenting decision-making processes and setting out the clear business reasons behind the policies and procedures implemented can provide crucial evidence in a dispute.

The Contract of Employment

If the contract specifies the individual’s home address as their place of work, depending on the other provisions within the contract, an employer would likely need to vary the terms of the employment contract. There are several ways this can be done, but the risks associated with each action differ.

  1. The employer can seek to amend the contract by consent. In practice, that means the employee gives their consent to the change before the change is implemented. This consent should be in writing and clearly given to negate the risks.
  2. The employer can seek to implement a unilateral change of the employment contract. However, this is a risky action, if the employee refuses to accept the change and the employer implements it anyway, this could result in a breach of contract or constructive unfair dismissal claim.
  3. The employer may wish to fire and rehire to implement the contractual change, but this is an extremely risky move which may damage the employment relationship moving forward, or worse result in an unfair dismissal claim.

If employers propose a contractual change and seek agreement from the employee and this is not given, or the proposal is outright rejected, an employer may wish to negotiate with the employee(s) or a trade union representative to see if a compromise on the position can be agreed. This could involve reducing the requirements to attend the office, increasing salaries, or offering flexibility in other aspects of employment (ie. Hours, targets, expenses policy).

Statutory Rights and Legal Precedents

Despite the widespread adoption of remote working during the pandemic and a changing dynamic with the increase in hybrid working arrangements, there remains no statutory right for employees to work exclusively from home. Arrangements on home working are therefore open to negotiation between the parties.

The legal framework instead provides all employees with a day-one right to request flexible working arrangements, which employers must deal with reasonably following the statutory procedure. Flexible working requests are not just about working from home arrangements but can also cover the number of hours an employee works, start and finish times of work and the days they work.

Dealing with the request reasonably does not require an employer to accept every flexible working request. Employers should consider the advantages and disadvantages of the application, consider possible alternatives to the re