Friday’s headline in The Telegraph above heralds the launch of a new Government campaign to encourage those currently working from home back into their physical offices. A series of noticeably unnamed Government Ministers and “sources” told the paper that “bosses at struggling firms will find it easier to hand out P45s to people they never see than to those who have been at their desks during the pandemic” and separately, “People need to understand that WFH is not the benign option it seems…suddenly the word “restructure” is bandied about and people who have been working from home find themselves in the most vulnerable position“. One Cabinet Minister went further – though seemingly unencumbered by the need for any actual evidence – and boldly asserted that “Companies will realise some people weren’t working as hard as they thought…there is going to be a review of how productive people are”.
This is scary stuff for employees still uncomfortable about public transport, living with someone clinically vulnerable or rightly sceptical of the ability of any Government app to magic up alternative routes to work and less crowded trains. However, it is also a message very much diluted by some visible second thoughts within Government, even since last week. The information campaign has apparently been dialled down in tone already. Monday’s Times says that Downing Street has “played down” (i.e. admitted) reports that it is revisiting the campaign, and apparently always intended to start it in regional newspapers only, even though the percentage of staff who have made it back into the office in the regions is substantially higher than in London. A frantically back-pedalling “Whitehall insider” told BBC News Online that it was certainly not the Government’s intention to suggest in its campaign that those who continue to work from home are at any greater risk of losing their jobs, dear me no – that is seemingly being left to Cabinet Ministers. Instead the revamped focus of the campaign is to be more on the positive social and emotional/mental health benefits of attending the workplace and less on the risk of a one-way ticket to even more time at home if you don’t.
But where someone wants to WFH and has shown it feasible over the last 5 months, are those intangibles good enough to allow the employer to insist on a return or (put differently) to refuse a request to WFH under the flexible working regime, the piece of law which will underpin much of the debate in this area? For these purposes, we must remember that “employee has shown it feasible” of course actually means that the employer can’t show that it isn’t, which will be an increasingly uphill fight if it hasn’t said anything to that effect so far. Insisting on a return to the office without that evidence opens the door not just to claims under the flexible working rules but potentially also for indirect discrimination in relation to disability, gender and age.
The 8 acceptable reasons for refusing such a request in Section 80G Employment Rights Act 1996 all relate to the impact of the intended flexible arrangement on the business, and none of them to whether it is for the shorter or longer-term benefit of the employee. Therefore if I decide that my working day is in fact happier and just as productive (some might say, more so) without seeing my erstwhile colleagues, who is then my employer to tell me that the Government’s “social benefits and emotional case” for going back to the office should take precedence? That message is still harder for the employer to enforce because it is not actually for its benefit in the first place, but instead for the businesses and industries which live off commuters and office workers in city centres – the coffee bars, sandwich shops, pubs, trains and traffic wardens.
If employers and the Government lack legal leverage to prise me out of my home workstation, how about a light spot of bribery? It has been reported that some employers are offering additional benefits (a free canteen service seems a popular choice here) or small bonuses to those who return, in order to compensate for their additional travelling costs. This seems superficially attractive and might make a difference to a handful of waverers, though surely only the shallowest of employees would shelve their fears of potentially fatal infection on the train for the sake of a free apple and a bap at lunchtime. Anything more substantial by way of encouragement would run into the obvious issue that you are then paying extra to get people to do a job they are already contracted and paid to do and are in fact already doing, though at home. If you can make a halfway concrete argument as to why you need them physically in the office, then you will probably be able to bring yourself within at least one of those 8 acceptable reasons and on that basis, you could decline the request to WFH in the first place.
Forcing the pace on the return to the workplace, especially where fears of a second wave remain and the evidence that WFH hasn’t worked is often so sketchy, is clearly unwise. It will upset and alienate employees both individually and collectively. It will create obvious scope for litigation from those who contract the virus after (though by no means necessarily from) a reluctant return to the workplace. A number of high-profile employers have made big statements about not asking their employees to return to the office in the near future. Q1 2021, no problem, they say, and perhaps for long after that. The question is whether that is (i) making a virtue out of a necessity; (ii) a silly public grand gesture they can’t hope to live up to in the longer term; or (iii) a smart move in the “unlimited holiday” vein, i.e. driven by the knowledge that time, ambition and FOMO will bring their brightest and best back in their own time. The majority of employees, especially those with most to learn and furthest to go, being with others, know that seeing first-hand what is done and why and how, will always beat sitting alone at home, even if you do save on the train fare. Once they are back and seen to benefit from it then the others are likely to follow and indeed the point may come where having the bulk of staff back in the office requires you to look again at whether it is feasible for a minority to stay away at all.
The re-opening of schools and universities this week is going to be the first time many people have thought seriously about their future working arrangements in many months. We anticipate a leap in the number of people making flexible working applications in the next few weeks as they come to terms with the tension between the freedom to return to the workplace and the discovery that they don’t actually want to. Employers wishing to wrest control of this back from their workforces will need to be very clear and specific as to why WFH has not worked for them in any given case (i.e. per individual, not as a matter of blanket principle) and to have the evidence to back that up – the app probably won’t work as intended, the pulling power of fruit-based inducements may be limited and the employer’s bleating away about the deemed social and emotional benefits for the employee in seeing his/her colleagues will not get it far, especially where its own social distancing measures have probably kyboshed a full return, the canteen, the break-out areas and chatting to one’s colleagues without doing so through a mask or over a positively anti-social distance anyway.
© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 246