Return to office mandates: what employers need to consider

The debate around return to office mandates continues to divide employers and employees. Many businesses are seeking to re-establish more consistent office attendance, whether to encourage collaboration, strengthen workplace culture, support supervision, improve training opportunities or make better use of office space. At the same time, many employees have organised their working lives around hybrid or remote working arrangements that have been in place for several years.

Santander is facing legal action over its requirement for employees to spend three days a week in the office. The case highlights the difficulties employers can encounter when seeking to tighten hybrid working arrangements across a large workforce. The key legal question is often not whether an employer can require employees to attend the office, but whether that requirement is introduced and applied in a way that is fair, proportionate and consistent with contractual and equality obligations.

What do employment contracts say?

The starting point will usually be the employee’s contract of employment. If the contract specifies that the employee’s place of work is a particular office, the employer may have a stronger basis for requiring attendance there. In those circumstances, a return to office mandate may be presented as the enforcement of an existing contractual term rather than the introduction of a new one.

However, the position is not always straightforward. Since the pandemic, many employees have worked remotely or on a hybrid basis for several years. Some employers have also approved individual flexible working arrangements or expressly agreed long-term hybrid working patterns. Those arrangements may affect the extent to which an employer can insist on increased office attendance without further discussion.

Employees may also seek to argue that long-standing remote or hybrid working arrangements have become contractual through custom and practice. Such arguments are highly fact-specific and can be difficult to establish, but employers should not assume that a contractual office location gives them unrestricted freedom to reverse arrangements that have operated consistently over an extended period. Factors such as how the arrangement was communicated, whether it was described as temporary and whether the employer reserved the right to change it may all be relevant.

Is there a legal right to work from home?

There is no general legal right to work from home. Employees can make statutory flexible working requests and employers must deal with those requests reasonably, but the law does not give employees an automatic entitlement to work remotely.

That said, return to office mandates can still create significant legal risk. The issue is often not office attendance itself, but the impact that increased attendance requirements may have on different groups of employees and the way in which the change is implemented. Where large numbers of employees are affected, it is foreseeable that some will have relocated further from the office, taken on caring responsibilities or developed health conditions that make regular commuting more difficult.

A blanket approach is therefore more likely to attract challenge than one which provides genuine consultation and meaningful consideration of individual circumstances.

Where are the main legal risks?

The greatest legal risks often arise from discrimination and contractual claims rather than from flexible working legislation itself.

Employers should be particularly alert to disability discrimination issues. Employees with disabilities may require adjustments to working arrangements, including continued home working, reduced attendance requirements or increased flexibility around commuting times. Failure to properly consider reasonable adjustments could expose employers to discrimination claims.

There may also be indirect discrimination risks. A return to office requirement could have a disproportionate impact on employees with caring responsibilities and, in particular, women who continue statistically to undertake a greater share of childcare and caring responsibilities. Employers would need to consider whether the requirement is a proportionate means of achieving a legitimate business aim and whether less restrictive alternatives could achieve the same objective.

Contractual change is another significant area of risk. Where an employer is seeking to alter employees’ terms and conditions, meaningful consultation will be important. Imposing substantial changes without agreement may lead to grievances, resignations, breach of contract claims and constructive dismissal allegations.

What should employers do before introducing a mandate?

Employers considering a return to office requirement should:

• review employment contracts, policies and previous communications regarding hybrid working;
• identify whether homeworking or hybrid arrangements may have become established through practice or individual agreement;
• consult meaningfully before implementing significant changes;
• clearly explain the business reasons for increased office attendance;
• consider flexible working requests on their individual merits;
• assess whether reasonable adjustments may be required for disabled employees;
• consider the potential equality impact of any proposed mandate;
• avoid a one-size-fits-all approach where individual circumstances justify flexibility.

Return to office policies are not unlawful in themselves. Employers are generally entitled to determine how and where work should be carried out. However, organisations that seek to tighten hybrid working arrangements without consultation or sufficient flexibility may expose themselves to contractual and discrimination claims. The safest approach is not simply to require attendance, but to understand and address the legal and practical difficulties that may affect different members of the workforce before they develop into disputes.

If you have questions or concerns about implementing a return to office requirement, please contact Employment partner Marie van der Zyl.