Getting back to the office: legal risks employers must watch out for

We have recently marked five years since the start of the COVID-19 pandemic. Whilst COVID-specific memories of shielding, workplace testing, furlough and flexible furlough have faded with the passage of time, one change brought about by the pandemic has had a lasting impact: home working.

The order to ‘stay at home’ back in March 2020 precipitated a massive shift in workplace culture. With technological advancements, remote or hybrid working was normalised.

Five years on, there are signs that many employers want a return to the office. Since January, Amazon has required all employees to work in the office five days a week, ending its previous hybrid work model. At the same time, BT required its 50,000 office-based employees across the UK and several other countries to attend three days a week.

The movement towards home or hybrid working was, for most employers, a matter of short-term necessity during the pandemic. An employee’s contractual place of work was not formally changed in a lot of cases. Notwithstanding this, employers should not have a blanket rule to get back to the office. To do so gives rise to several areas of legal risk:

• Reasonable adjustments for disabled employees – Employers must consider whether home or hybrid working could be a reasonable adjustment under the Equality Act 2010 for employees with disabilities. Automatically requiring office attendance without considering individual needs could amount to disability discrimination.

• Potential indirect sex discrimination – A full-time return-to-office policy or a short-notice mandate could disproportionately disadvantage women, particularly those with caring responsibilities. Employers must ensure their approach can be objectively justified to avoid indirect sex discrimination claims. Consideration should be given to a phased return to allow employees time to adjust.

• Existing flexible working agreements – Employers should be mindful of past flexible working arrangements. These should not be rescinded by any ‘back to office’ mandate – they form part of the relevant employees’ contractual terms.

• Handling increased flexible working requests – Employers should brace themselves for an increase in flexible working requests following any requirement for office attendance. Flexible working requests can cover the place where the employee works. Employees now have the right to request flexible working from day one. Employers must follow a fair process when considering any request and, if refused, must be able to point to one or more of the eight statutory grounds of refusal.