There is growing evidence that more companies are shifting their stance and requiring employees to spend increased time at the usual workplace. It’s reported that multinationals such as Google, Apple, and Twitter are instructing employees to return to the workplace, and according to KPMG’s CEO Outlook research, 62% of UK CEOs predict that over the next three years, employees whose roles were traditionally office-based will be back in the workplace full time.
What are the key issues for employers to look out for?
Employers who are planning to bring more employees back to the workplace will have to navigate this transition with care if they are to manage it successfully and compliantly. Employers need to be mindful of the legal position regarding employment contracts (both existing and new), flexible working requests, potential discrimination, stress at work, and health-related claims.
Hybrid working – what are the implications for employment contracts?
According to our recent survey (December 2022) of over 130 3CS clients, some 80% of companies offer hybrid working and over 50% of these are for periods of 2-3 days working from home. Although there is increasing pressure from employers to shift to more office-based working, the figures indicate that hybrid working is in place, and is currently common practice. This has implications for the Employment Contract.
(i) What are the implications for existing employment contracts?
Employment contracts include a ‘place of work’ term indicating the employee’s expected place of work. For most employees, their ‘place of work’ will have changed during the pandemic when many employees worked remotely. This represents a variation of the employee’s contract. However, this does not necessarily mean that their contracts would have been expressly changed.
Can the remote working variation be considered an implied contract term?
So, can the employee argue that the variation created an implied term to allow them to continue working from home, against the background of growing pressure from employers for their return to the office?
Whether or not employees can argue for an implied new place of work term will depend on whether the variation was seen as temporary or permanent. Employers can argue that if the remote and hybrid working arrangements stemmed from the government guidelines during the pandemic, then this was not intended to be a permanent variation of this term of the contract – only a temporary one. And so, the employer can insist that the employee now starts returning to the workplace on a more regular or permanent basis, whichever the company prefers. Albeit that a partial return needs to be carefully documented and managed so as to maintain the overarching full-time contractual obligation.
What could be considered a permanent change to the place of work?
Problems can arise if the employee can show evidence of a permanent change to the place of work. For example, an employer may have relocated the office premises without the consultation or agreement of the employees. This might be held to show that there was no intention to have the employees working from the new premises and that therefore working from home was a permanent goal. Each situation should be considered on its merits, and existing employment contracts should be reviewed.
(ii) What are the implications for new contracts?
All new employment contracts should contain wording that gives employers flexibility in defining the place of work. Having a clear hybrid working policy in place which can be in the contract and/or the staff handbook is advisable. If companies require more office-based hours then this should be reflected in the standard wording in a new employee’s contract. Any requests to vary those hours can then be dealt with by way of flexible working requests if employees so wish.
How 3CS can help
If you need help with the legalities of hybrid working or any employment law issue, please get in touch with your usual 3CS contact.
