Mandating a full-time return to the office could be counter-productive

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The term ‘work from home’ means different things to different people – for some it provides them with an opportunity to balance home and work responsibilities more easily, for instance if they have children, act as a primary carer for a family member, or would otherwise have a lengthy commute into the office.

For others, it can be isolating and lead to lower productivity compared to being amongst colleagues, so they prefer to be in the office on a regular basis. Then there’s those who enjoy the best of both worlds, enjoying the flexibility of choosing when they want to be in the office or at home working.

We are increasingly seeing organisations move back to a mandatory five-day working week from the office. A recent survey by Virgin Media O2 revealed that 40% of companies are calling staff back in the office five days a week. However, a flexible, hybrid model should still be considered by businesses who are contemplating their next move when it comes to working models.

Increasingly, flexibility is becoming a key driver in whether an employee will choose to stay with an employer or not. In the last few years since the pandemic, both employers and employees alike have seen that (in the main) working from home is a workable alternative to being in the office every day, in terms of achieving deliverables and high productivity. Research conducted this year by American Express highlights that a good work/ life balance is key to job satisfaction – with 71% of UK respondents saying that work/ life balance is top of their priority list, ahead of higher pay. This shows just how important flexible working has become for employees, and completely taking this benefit away will lead to dissatisfaction amongst employees, and likely an increase in people handing in their notice.

Allowing some degree of flexibility for employees to work from home is not just a moral consideration for employers, but it could also be a legal one. Under the Equality Act 2010, ‘indirect discrimination’ is described as when a working practice, policy or rule is the same for everyone but has a negative effect on someone because of a ‘protected characteristic’.

An organisation could potentially fall foul of indirect discrimination claims where they introduce a mandatory return to the office five days a week, if for instance they employ any person who is disabled or a woman with childcaring responsibilities. Claims from such employees under the Equality Act 2010 could be brought against an employer in these circumstances if the mandatory return to working from the office five days a week negatively impacts them. This protection against indirect discrimination would also extend to those who are classed as ‘primary carers’ for disabled family members if the direction to return to the office five days a week meant that they were unable to take their family member to appointments or help with their care.

The threat of indirect discrimination claims around mandatory returns to working from the office is not without substance. In recent months, there have been cases where an employee who has been dismissed for failing to return to the office full-time due to a protected characteristic has received a substantial payout at tribunal, so it’s important for employers to take heed of these cases and consider fully whether a mandatory return to the office five days a week is essential.

If employers are fully committed to mandating a full-time return to the office, it is worth considering whether those employees who have protected characteristics can be moved to alternative roles, where working from home is permitted, or if they could be given special dispensation by the employer to tweak their working pattern in order to work from home on days where it is required due to appointments or caring responsibilities for example.

This is not to say working from the office full-time is not the right thing to do. As mentioned above, some employees enjoy the opportunity to come into the office environment and engage with colleagues face-to-face five days a week, but where possible this should be a choice for employees and not compulsory.

Some employers may feel that there is strength in numbers as an increasing number of employers are mandating a return to the office full time, however, this will not prevent aggrieved employees claiming or leaving if they feel that they no longer have the work/ life balance that they want.

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