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Boardside Employment and Immigration Bulletin

 May 2021

The Great Return?

Considerations for returning to the office following the easing of lockdown restrictions

Many employers are facing challenging and often untested employment law questions as staff start to return to the office following a period of time on furlough or working from home.

According to the BBC, statistics show that almost 90% of office workers are keen to continue to work from home for at least some of the time now that restrictions are easing.

The dilemma for employers is how to get the best talent for their business and how to retain the most productive team possible.  Employers are having to juggle the requirements of customers, the needs of their business and the preferences of their employees.  There is no blanket approach; different roles and businesses have particular requirements.

Initial top tips:

  • Consider how you are going to manage people coming back into the office, from a health and safety point of view as well as from a working arrangements standpoint.  Remember, there is likely to be a disproportionate number of women in particular who wish to continue working from home to some degree.
  • Communication is vital.  Find out about your employees’ expectations.
  • For larger businesses, engage with different departments and with individual employees to get a general understanding of everyone’s perspective.
  • Look at what competitors and customers are doing – what is the “new norm”?
  • Train your line managers to be aware of pitfalls
  • Now is a good time to review your contracts and policies

Over the next 4 weeks, we will be producing a weekly bulletin which covers different legal considerations for hybrid working.  We will deal with the following areas:

  1. Contractual changes
  2. Do your policies require re-drafting/reviewing?
  3. Flexible working – practical considerations and pitfalls
  4. Health and safety issues

Changes to an employee’s contract of employment

The initial question to ask is whether there will be a fundamental change to the terms of each employee’s contract of employment.  Hybrid working will have an impact in particular on the employee’s place of work and hours of work, as set out in their contract.  Changes such as these cannot be pushed through unilaterally, although employees are likely to agree if those changed terms are to their personal benefit.  It is important to be aware of different options available and of possible pitfalls.

Example:  Changes to the employee’s place of work, to reflect that they will be working both from the office and from home

  • This can be notified either by a letter notifying the employee of the change or by amending the contract itself. 
  • It is also possible to introduce a clause into the contract to allow general flexibility.  This should be worded carefully; a more widely worded clause and one which is to the detriment of an employee is less likely to be enforceable.  An example of this would be a clause increasing hours of work. 
  • Any ambiguity is decided in favour of the employee. 
  • If the business is requiring everyone to work from home permanently, this could be a fundamental change to the employees’ terms and conditions of employment. 
  • Any variation of terms and conditions of employment must be communicated with the employee and have the employee’s consent.
  • Any objections must be considered on a case by case basis.

Step by step process

Whatever an employer’s objectives are when considering new ways of working, post-pandemic, it is important to bear in mind the following particular steps:

  1. Communicate with the employee regarding proposed changes.
  2. Make a proposal with regard to your preferred working structure.
  3. Consider whether the change will affect everyone, or just individual roles.
  4. Update managers on changes, so they are able to deal with questions which arise.
  5. Consult and obtain consent from employees in relation to changes to terms and conditions.

Carry on jabbin!