20th July 2020
Can employers force employees back to the office - Alexandra Mizzi (Howard Kennedy)
Boris Johnson's aim for office workers to return to normal service by Christmas seems wildly optimistic. Most employer surveys show reluctance among employees to return to the office. Although employees don't have an absolute right to work from home, employers who try to force their employees to return do so at their peril. The new guidance trialled by the Government effectively delegates decisions about the safety of mass commuting by public transport to employers. It's fertile ground for disputes, and employees certainly have potential avenues to avoid return.
Employees who have been employed for at least 26 weeks can request flexible working from home. Although employers aren't obliged to agree, they can only refuse for certain business reasons, such as detrimental impact on performance, and need to deal with the request reasonably. Employers will find it much harder to justify refusal when home-working has worked out fairly well - and may face Employment Tribunal claims for discrimination or constructive dismissal. Staff who are legally disabled and whose disability makes them vulnerable to coronavirus may argue that homeworking is a reasonable adjustment under the Equality Act – employers can face disability discrimination claims if they fail to make such adjustments.
Although there is no general right to refuse to attend the workplace, it's risky to dismiss employees who refuse on safety grounds. Where the employee reasonably believes there is a serious and imminent risk to health and refuses to work, a dismissal for that refusal is regarded as automatically unfair. Even in less stark cases, employers must act reasonably in determining whether to dismiss an employee, as employees with 2 years' service can bring unfair dismissal claims.
Employees should set out any concerns about the proposed return in writing, so that the employer is on notice of any reasons making it difficult for them to return (such as health, childcare or transport issues) and be prepared to show some flexibility – with long delays in the Employment Tribunals currently, a workable agreement may be a better solution than litigating.