As an employer, can you decide whether employees can work from either home or office?
By Amanda Hamilton, NALP
Slowly but surely we are getting back to some kind of normality and the question arises whether or not you, as an employer, can force your employees to continue working from home if they don’t wish to do so, or vice versa?
The answer to this question depends, in a small way, on whether you have an employment contract which states where their place of work will be. Of course, there is always room to negotiate if you make yourself approachable enough. Unprecedented times demand unprecedented negotiations!
Returning to the office
Lots of us may not yet be happy to commute on public transport into work like we used to do. On the other hand, you may have employees lucky enough to be within walking or cycling distance of your office. But how safe do they feel about returning, especially if the office, factory, studio or whatever the place of work may be, has numerous staff or employees?
On the other hand, many people are very keen to get back to the office and their work colleagues and may well be wishing to go back to the office before you ask them to.
Working from home
If you have employees that have been working from home and have the facilities to do so, and you have been quite happy with their productivity, then there should be no reason why they can’t negotiate with you to continue doing so. And while government guidelines are still recommending people work from home, then you may be hard pushed to force anyone back to the office.
On the other hand, if a job cannot be done satisfactorily from home and you can demonstrate this, then it may be difficult for your team members to claim any rights to continue working from home if their usual place of work, pre-COVID, was your office.
But what of workers that are sick of working from home? They miss their workmates, the children are driving them mad, they cannot get that work-life balance right and they enjoy going to work. Can you tell them to continue working from home? Do they have to comply? This will depend on what place of work (if any) is specified in their contract of employment.
Employment contracts and government guidelines
For example, if their contract states that ‘your place of work shall be xxx’ then that should be where they will be working. However, if, for example, you have taken the decision (perhaps because of a drain on finances due to lockdown) to cancel the lease on the work premises (without consultation) and there is no longer a possibility of working from xxx, then there could arguably be a claim for breach of employment contract and wrongful dismissal at common law.
Regardless of employment contracts, while the government guidelines say ‘work from home wherever possible’, you may be able to justify your insistence that your team continues to work from home, even if their contracts stipulate their place of work is elsewhere.
If an employee feels that they cannot work in the new way you have stipulated, whether that’s asking them to stay at home or asking them to return to the office, and this in turn makes them feel you have no choice but to leave, they may have a constructive dismissal case against you.
However, they should bear in mind the government guidelines and try to understand your difficulties. Acting in a reasonable manner, under all the circumstances, should be the order of the day.
Nevertheless, it’s a delicate and unprecedented situation. I have seen some business owners ask their employees what they would prefer to do, and quite often this works out well, as some will want to return to the workplace and others will not. Alternatively, some employers have a rota system in place, where employees come into the office two or three days per week and by taking it in turn, this helps to maintain safety, and distance guidelines.
Whatever the situation is, we have not experienced the like before and would hope that employers are sensitive to the wishes of their employees and vice versa to try to reach an amicable arrangement.
However, if you find yourself in a difficult situation in relation to employment contracts, and need assistance with the legalities, you can call on the services of a paralegal. A paralegal is a legal professional who is not a qualified solicitor and, therefore, will not charge the earth to help you sort things out on the legal side of things if you need them to do so, and may help to diffuse any possible adverse situation by negotiating on your behalf.
ABOUT THE AUTHOR
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.