Returning to office-based working? Legal risks for employers

It’s been five years since the start of the COVID-19 pandemic. While memories of shielding, testing, and furlough have faded, 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, and technological advancements helped to make remote and/or hybrid working the new normal.

A return to office working

Five years on, there are signs that many employers want to 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. Similarly, BT required its 50,000 office-based employees across the UK and several other countries to come into work 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. 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
  You should consider whether home or hybrid working could be a reasonable adjustment under the Equality Act 2010 for your 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. As an employer, you should ensure that your approach can be objectively justified to avoid indirect sex discrimination claims. Maybe consider a phased return to allow employees time to adjust?
• Secure existing flexible working agreements
  Be mindful of agreed flexible working arrangements — These shouldn’t be rescinded by any ‘back to office’ mandate if they form part of the employees’ contractual terms.
• Handling increased flexible working requests
  Brace yourself for a bump in flexible working requests following any requirement for office attendance. Employees now have the right to request flexible working from day one. Make sure that you follow a fair process when considering any request and, if refused, you must be able to point to one or more of the eight statutory grounds of refusal. 

Further Reading

• Equality Act 2010: guidance – GOV.UK
• What does the Employment Rights Bill mean for you? – GOV.UK
• Employment Rights Bill – Top 8 significant changes – Hunter Law
• Employment Rights Bill – January 2025 update – Hunter Law