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Can an employer dictate where their staff works from – office or home – as we re-enter ‘normality’?

Written by Amanda Hamilton on Monday, 21 June 2021. Posted in HR, Commercial law, Legal, People

As lockdown is being lifted and we are all trying to get back to some kind of ‘normality’, will the new version of normality be the same as the old?

Can an employer dictate where their staff works from – office or home – as we re-enter ‘normality’?

As lockdown is being lifted and we are all trying to get back to some kind of ‘normality’, will the new version of normality be the same as the old?

This applies particularly to the method of working. Prior to the pandemic, the majority of employees were required to work from the employer’s place of business. However, since lockdown, employers, if they have been able to do so, have had to reorganise their employees’ working methods. Of course, some employees have been on the furlough scheme, but others have been given the facility to work remotely from home.

The question now arises whether or not employers are able to insist on their employees returning to the workplace, even if the employees still feel at risk by doing so? This could be exacerbated by the fact that many will have to utilise public transport to get to there. 

The legal issue

The answer is not a simple one as we are entering totally unprecedented territory here. Clearly, if there is an employment contract which states where the employee’s place of work should be then, legally, that should be the place of work. However, since the pandemic has already affected the legal status of the contract, then on a practical level, there is no reason why an employee, whose productivity has been good while working remotely, should not be allowed to continue doing so. This is especially so if the employee feels happy to continue and would feel unsafe to return to work.

On the other hand, if an employee is fed up with working from home because of the kids, animals, noisy neighbours or not being able to achieve a decent work-life balance, then should they be able to return to work if the employer has decided that remote working is the way to go? Again, the employment contract will have a say in that. Technically and legally, if the contract does specify an address as the workplace, then the employee could insist on that being their place of work. If that is the case, then it is the employer’s responsibility to ensure that the workplace is a safe environment by insisting on (if applicable) distancing, mask wearing (in common parts) and providing sanitising stations at every opportunity.

The legal element

The worst-case scenario could arise if there has been an apparent breach of the contract of employment because either the employer insists that all employees work from home even though there is a workplace specified in the contract, or, if the employer has ended the lease on the office premises without consultation with employees. This may give rise to a claim for unfair dismissal if the employees feel aggrieved that their place of work no longer exists. An employment tribunal case could ensue. 

Similarly, if the employer insists that all employees should return to work even if some do not feel comfortable about doing so, or indeed have underlying health issues that make it dangerous to do so, can the employer dismiss those employees? Again, this could give rise to a tribunal case for wrongful or unfair dismissal.

Flexibility and understanding

The answer to these unprecedented scenarios arising is that in such a situation one should apply a reasonable approach. A modicum of understanding and flexibility should be applied on both sides. Both parties should enter into a discussion about the situation and should be able to reach a compromise that is acceptable for all. 

If any legal issue does arise, then why not ask a paralegal to help. Paralegals can offer legal advice and assistance and are far more cost effective than a solicitor.

About the Author

Amanda Hamilton

Amanda Hamilton

Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. 

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