‘There is no lawful right to work from home’: employment rights for returning to the office after the pandemic explained

Many people have adjusted to working from home during the Covid pandemic, switching the office environment for a kitchen table or bedroom setup.

But what are your working rights if you don’t want to head back to the workplace when your employer asks, or what if you’d like to return to the office but your boss would prefer you to continue working from home?

Here’s what you need to know.

‘There is no lawful right to work from home automatically’

When the Covid pandemic first began and people began to transition from the daily commute and day in the office to working from their bedrooms or kitchen table, it was a huge change for many.

However, working from home has now become the norm for many workers across the UK, and something which some people may like to continue doing even as lockdown restrictions ease.

Employment Law, HR & Health and Safety services expert Peninsula has found that since lockdown restrictions began to ease further in April, their 24/7 HR advice line has seen a 52 per cent increase in queries from employers regarding returning to the workplace.

However, feelings surrounding returning to the workplace have been split, with 60 per cent of calls from employers about employees resisting returning to the workplace, whilst 37 per cent were about employees embracing a return to the workplace.

Alongside this, there was also a 20 per cent increase in calls from employers managing an influx of flexible working requests ahead of a return to the office.

For those who are looking ahead and wondering if a return to the office - or a permanent switch to working from home - could be on the cards, Kate Palmer, HR Advice Director at Peninsula, says it’s worth remembering that “there is no lawful right to work from home automatically in normal times.”

Ms Palmer adds that “the closest the law currently gets is the ability for staff to request flexible working, which can include a change to working conditions such as homeworking.”

This usually means that all employees are able to submit one request every 12 months to switch to flexible working if they have worked for a company for at least 26 weeks.

Ms Palmer explains that although the company does not have to agree to this, “it does have to provide sound business reasons for its refusal."

It will therefore “ultimately be down to employers if they allow home working to continue post-pandemic, once the current guidance on working from home changes,” Ms Palmer adds.

Alan Price, CEO of BrightHR, says that if an employee is disinclined to return to the office, then “employers will need to determine why the employee is reluctant to return,” and “should be careful not to force staff to return to the workplace as this could lead to a decline in staff retention and/or morale.”

Instead, employers should “consult with employees to address when the company proposes they return, giving ample notice, and discuss any issues they may have about returning.”

This is something which Ms Palmer reiterates, saying: “Employees that wish to stay at home in contrast to what their employer wants are likely to push back against a blanket return to the workplace, especially if they have been just as productive from home.

“They may become less happy in their work and, ultimately, consider moving on.”

Employers may therefore wish to consider compromise arrangements, such as hybrid working.

Will I need a new contract if I work from home permanently?

Working from home on a permanent basis would require a change to the terms and conditions of contracts, which both staff and management will need to agree to, explains Ms Palmer.

The HR expert says that “a flexible working request represents a permanent change to working conditions and cannot be changed back without further agreement from both parties.”

However, employers are also “within their rights” to incorporate a trial period into this arrangement, but only if this is clearly stated in the contract.

A permanent home working arrangement should also be treated differently to a temporary one, “in the sense that more equipment may need to be provided to the employee, and more thought given to their health, safety and wellbeing whilst working from home.

“Whilst less than ideal working situations such as working from a bedroom were necessary during the pandemic, making this a full-time working environment may pose problems of its own.”

‘A return to the office can be prioritised if homeworking is no longer feasible’

Although current guidance advises for staff to work from home if they can, “employers may find it easier to ask staff to stay away from the office even if they do wish to return,” says Ms Palmer.

However, in situations where employers have workers who want to return to the office instead of continuing to work from home, she says “communication with staff is vital”.

“Listen to their concerns, explain why the change is being made, and see if there is a compromise that can be reached,” says Ms Palmer.

What Covid safety measures need to be implemented in offices?

Covid-secure measures should also be implemented in the workplace in order to reduce the spread of the virus, says Mr Price.

Employers are also being encouraged to implement mass in-house testing so that asymptomatic cases of coronavirus can be detected, and these measures then communicated to the employee. For example, this could mean sharing the company’s Covid risk assessment and testing policy with staff.

“By doing this, a return to the office can be prioritised if homeworking is no longer feasible,” Mr Price explains.

Employees who are reluctant to return to the office may also be encouraged if their employer highlights the measures that have been taken to ensure the workplace is Covid-secure, such as social distancing policies and mass on-site testing.

Alternatively, prioritising bringing back the reluctant employee after they have had their second dose of the Covid-19 vaccine - if this is something they wish to take up - may also be useful, explains Mr Price.

Seeking a compromise

However, Ms Palmer adds that “employers should remember that staff need to agree to a change in their working day” and it may therefore “be more advisable to try to seek a compromise with staff.”

Holding discussions with employees about their return to work is something which Mr Price also reiterates the importance of, as he says “employers may wish to consider alternative options where possible,” including continuing to allow “home working until government guidance changes, or another more suitable adjustment.”