I wonder how to handle employees refusing to return to the office

Six years on from the COVID-19 pandemic, the debate over where employees should work is far from over. While some businesses are encouraging staff to return to the office full-time, others have embraced hybrid working. However, for employees who have grown accustomed to working from home, the prospect of returning to the workplace may not be particularly welcome.

So, what happens when an employer asks an employee to return to the office, but they refuse? Can you insist they come back, and what are your options if they won't?

In this article, we explore your rights as an employer, how to manage a refusal to return to the workplace, the potential legal risks, and the practical steps you can take to protect your business while maintaining positive working relationships.

Can employers legally require employees to return to the office?

Whether you can require employees to return to the office largely depends on their employment contract and the working arrangements that have developed over time.

If an employee’s contract states that their usual place of work is the office, and working from home was intended only as a temporary or informal arrangement, you will generally be entitled to ask them to return.

However, things become more complicated when home or hybrid working has been the norm for several years. Even where no formal agreement has been made, an employee may argue that their working arrangements have become an implied term of their contract through established practice.

In these circumstances, requiring an employee to return to the office could amount to a change in their contractual terms. Introducing such changes without agreement could leave your business open to claims for breach of contract or, in more serious cases, constructive dismissal if an employee resigns in response to the change.

Before introducing a return-to-office policy, review your employees’ contractual terms, explain the reasons for the proposed changes, and consult those affected. Where a contractual change is required, seeking agreement is generally the safest approach and can help avoid unnecessary disputes.

What if the employee makes a flexible working request?

An employee who is reluctant to return to the office may submit a formal flexible working request instead. It's important to recognise when this happens, as employers have specific legal obligations when handling these requests.

Since April 2024, employees have had the right to request flexible working from their first day of employment. This includes requests to work from home or adopt a hybrid working arrangement.

If an employee submits a formal request, you must consider it reasonably, consult with them before refusing it and provide a decision within two months, unless a longer period is agreed.

Under employment law, you can only refuse a flexible working request for one or more of the following eight business reasons:

• The burden of additional costs
• A detrimental effect on your ability to meet customer demand
• An inability to reorganise work among existing staff
• An inability to recruit additional staff
• A detrimental impact on quality
• A detrimental impact on performance
• Insufficient work during the periods the employee proposes to work
• Planned structural changes

Importantly, simply preferring to have everyone working in the office is not, by itself, a valid reason for refusing a request. You should be able to explain how the proposed arrangement would affect your business and demonstrate that your decision is based on one or more of the recognised grounds.

What are the legal risks of requiring employees to return to the office?

Requiring employees to return to the workplace can create legal risks beyond the flexible working rules, particularly if the changes are introduced without proper consideration or consultation.

Some of the key risks employers should be aware of include:

• Breach of contract or constructive dismissal: Imposing changes to an employee’s agreed working arrangements without their consent could lead to a breach of contract or, in more serious cases, a constructive dismissal claim.
   
• Indirect discrimination: A blanket return-to-office policy could disproportionately disadvantage certain groups, particularly women with childcare responsibilities, potentially giving rise to discrimination claims if the requirement cannot be objectively justified.
   
• Failure to make reasonable adjustments: Employers have a legal duty to make reasonable adjustments for disabled employees. In some circumstances, allowing an employee to work from home may be a reasonable adjustment.
   
• Inconsistent treatment: Allowing some employees to continue working remotely while requiring others to return, without clear and justifiable reasons, could lead to grievances and allegations of unfair treatment.

Beyond the legal implications, a poorly managed return-to-office policy can also affect employee morale, trust and retention. A fair, consistent, and considered approach can help reduce these risks while maintaining positive working relationships.

What should employers do in practice?

If you're considering asking employees to return to the office, taking a clear, fair and consistent approach can help minimise legal risks and avoid unnecessary disputes.

Here are some practical steps to consider:

• Review employment contracts: Check employees' contractual terms and existing working arrangements to understand what you can reasonably require.
   
• Explain your reasons: Be clear about why office attendance is important to your business, whether that's improving collaboration, supporting training or meeting client needs.
   
• Handle flexible working requests properly: Consider each request fairly, consult with the employee before refusing it and respond within the required timescale.
   
• Consider individual circumstances: Take account of any health conditions, disabilities or caring responsibilities that may affect an employee's ability to return, rather than applying a blanket policy.
   
• Be consistent: Apply your approach fairly across similar roles and keep a record of your decisions and the reasons behind them.

Above all, communication is key. Taking the time to explain your business needs, listen to employees' concerns and explore possible compromises, such as hybrid working, can often help you reach a solution that works for everyone.

Summary

Managing a return to the office requires a fair and considered approach. By reviewing employment contracts, following the correct procedures and taking individual circumstances into account, employers can reduce legal risks and avoid unnecessary disputes.

Open communication and a willingness to explore practical solutions can help achieve an outcome that works for both the business and its employees.

Further Advice

If you need advice on returning employees to the office, managing flexible working requests or any other employment law matter, our Employment Peace of Mind Team is here to help. Our Document Audit Team can also assist with reviewing and drafting workplace policies.

For further guidance, contact our Employment Team on 023 8071 7717 or email employment@warnergoodman.co.uk.