Although many employers are exploring ongoing hybrid and remote working arrangements, some may be considering how they might incentivise employees to return to offices. Brian Palmer looks at the legal risks that could arise from offering financial and career rewards to office workers over home workers.
Government advice to work from home where possible was officially revoked on 19 July 2021 and, for many, a gradual return to offices is expected over the coming weeks.
The basic legal position is that all employees who are contractually obliged to work from the office can be required to do so. However, it seems clear that Covid-19 will remain a societal issue for some time and will continue to affect employers’ statutory, common law and contractual duties in respect of health and safety – notably the requirement to take reasonable care for the safety of their employees and provide a suitable working environment.
Many employees have spent 16 months away from the office, so there may be concerns and reluctance about returning, particularly for those having to use crowded public transport.
Home and hybrid working
How should HR handle staff who refuse to return to the office?
Rather than immediately trying to compel employees to return, some employers are giving employees some degree of choice in how often they work from the office. They are also staggering the return in a piecemeal way to offer employees a more gradual transition back to office life.
However, employers are also looking into incentives to make the return to the office more appealing. Bloomberg has offered its 20,000 global employees a daily allowance of £55 to cover out-of-pocket transportation costs when commuting, whether for car services, tolls, parking or public transport. Goldman Sachs is said to have offered to cover 10 days of childcare per dependent, in addition to 20 days that is normally available annually. Blackstone is covering taxis for employees in London and New York to attend the office.
Incentivising office working
Employers generally cite the benefits of a return to the office in fostering a strong collaborative and unified company culture as well as being important for employee morale and mental health.
In addition to offering several tangible ancillary incentives, there has been some discussion about whether employees returning to the office can be offered bigger pay rises and promotions compared to those continuing to work from home.
As with all differentiations of treatment of employees, there is a risk of potential discrimination claims that employers need to be aware of if they pursue this. Any less favourable treatment which may be associated with protected characteristics under the Equality Act 2010 may lead to difficulties.
For instance, if employees are shielding because they are clinically extremely vulnerable (or living with or caring for someone in that category), they are also likely to be categorised as disabled. To suggest that such employees would not be considered for pay rises or promotions would amount to discrimination.
Any less favourable treatment which may be associated with protected characteristics under the Equality Act 2010 may lead to difficulties. “
If employees have concerns about returning to the office because of a medical condition, employers should ensure that a risk assessment is carried out with certified medical input. It is possible that the individual will be disabled under the Equality Act and entitled to reasonable adjustments, one of which may be continuing to work from home.
For those who say they are unable to return to the office due to childcare responsibilities, employers should have a discussion with them to work out next steps and to discuss the options available. Employers should also be mindful of the discrimination risks (for example, on the basis that women are still more likely to have childcare responsibilities).
Instead of indicating those returning to the office will receive preferential treatment, it is important to engage with the reasons why some employees may not be able to return.
Protection from detriment
Employees who refuse to return may be protected if they suffer any detriment or dismissal if their refusal can be brought within sections 44 and 100 of the Employment Rights Act 1996, in that they are taking “appropriate steps” to protect themselves “in circumstances of danger which the employee reasonably believed to be serious and imminent”. This is particularly important as an employee can allege that any dismissal on the basis that they reasonably refused to attend work is automatically unfair (and employees do not need to have two years’ continuous service to bring this claim).
While some ostensibly discriminatory actions may be capable of being justified as a proportionate means of achieving a legitimate business aim, such a defence can be hard to demonstrate. Therefore, with the potential for unlimited compensation in discrimination claims, employers should seek advice in any particular circumstances of doubt.
For the most part, the lifting of lockdown restrictions should be a positive development for both businesses and employees. However, as with any material change, the return to the office gives rise to a number of risks and it seems likely further issues will come to light as the government’s guidance on office working is clarified.
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As with many employment law issues, adopting an open and supportive approach to office reopening, including providing as much warning as possible, is likely to mitigate many of the potential pitfalls employers face. Employers would be well advised to adopt a flexible approach to their planning where possible. As we have experienced, there may well be further twists and turns in the roadmap out of lockdown.
