Back to the office! | Jane Amphlett, Partner and Head of Employment at Howard Kennedy LLP

The summer holidays are over and children have returned to school this week. But getting employees back to the office after 30 months of home or hybrid working is not as straightforward. Many bosses are increasingly keen to get employees back, concerned about preserving culture, encouraging collaboration, innovation — so critical to tech businesses — and networking and facilitating learning and development. And despite evidence of increased productivity, with many tech businesses thriving through the Covid-19 pandemic lock-downs, there remain some sceptics who express concerns that employees “pretend to work” from home. So what approach should employers take?

Since the end of the initial Covid-19 lock down the drive to increase office attendance has not been straightforward or smooth. Waves of the pandemic have brought successive orders to “work from home” and employers have to adapt with each new phase of the pandemic and take steps to ensure Covid-safe workplaces, and manage concerns of employees about office working arrangements and travel. For some those concerns remain, as do employers’ duties relating to their employees’ and contractors’ health and safety.

To reduce the risks, some employers have considered mandatory vaccination policies. With the revocation of mandatory vaccinations for workers in the health and social care sectors and with concerns over the potential discrimination implications of such a policy, however, few have taken this route. Businesses’ focus has been directed instead on how best to achieve voluntary vaccination within their workforce and ensuring that they have alternative measures in place to reduce the risk of Covid-19 in the workplace.

Yet even as vaccination rates rise and anxiety over the risks associated with contracting the virus has receded for many, a mass return to the office has not materialised. Employees who have enjoyed improved work-life balance, less time and expense commuting and greater autonomy have been reluctant to return; and many will be able to point to greater productivity and lower sickness absence rates whilst working from home. After efforts to encourage attendance and various false starts, it seems that Big Tech is now seeking to force the pace and other employers are considering if they should follow suit, either mandating full time office attendance or a set number of days per week. The damage to team working and company culture and reduced collaboration from a dispersed workforce are the principal drivers.

Any company considering mandating a return will need to consider the employees’ contractual rights — is there a right to work remotely and, if so, can the employer change the place of work on reasonable notice? If the business has a right to require office working, employees (with 26 weeks’ service) can make a flexible working request but this is not a right to insist on flexible working and does not have substantive “teeth”: employers are required to consider requests in a reasonable manner and set timeframe but can reject them by giving one of the stated reason for refusal and employees have limited recourse unless the refusal would give grounds for a discrimination claim. Employers need to consider carefully and seek advice on handling requests which are to manage childcare commitments, as a refusal may amount to sex discrimination, or adjustments requested by an employee who is disabled or who has a ‘vulnerable’ family member, for example.

Requiring a return to the office is, in most cases, legally possible. But many employers are concerned about the ferociously competitive employment market and offering flexibility to employees is a way to attract and retain staff, particularly for smaller businesses. These combine with other potential benefits of home/hybrid working for some employers, including reduced overhead costs, better productivity and staff motivation.

Balancing these with the benefits to culture and collaboration of regular attendance, employers are focusing on incentives rather than edicts to encourage a greater office presence. Free meals, social events, free bike servicing and gym/exercise classes, and the opportunity to learn new skills — candle making or skateboarding for beginners anyone? The rising home energy bills may also play its part in the coming months.

Hybrid working is not a panacea and needs to be carefully managed to optimise its advantages as well as mitigating the risks, including management and oversight, data security and inclusivity. Nonetheless it is a lasting legacy of the pandemic and many businesses now need to focus on how to improve rates of office attendance, rather than demanding it.

Originally published at



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