Employees who refuse to return to the office post-coronavirus despite being asked to do so could be in breach of contract and face dismissal.
Employers had the right to apply to work flexibly before the pandemic, and will be able to do so post-pandemic, too. However, if an employer refuses that application, and the employee’s contract says that the normal place of work is the office, a refusal to return to the office could see the employee in breach of their contract and facing a possible dismissal.
Simon Kerr-Davis, who is Counsel at Linklater’s London employment office, said he expected employees would make flexible working applications post-pandemic and bring evidence that they were able to work from home fine during the lockdown, however he said it was not the “slam-dunk” argument people might be anticipating.
“It’s one thing to say that during a crisis, when everyone is working from home, the way that you’re delivering work is appropriate, but it’s quite a different prospect when everyone else is back in the workplace to say that it won’t interfere at all with business,” he said.
“I think employers might say, ‘well yes it was fine then, but actually now that we’re all back in, it’s a slightly different scenario’. I don’t think it will be quite as simple as people are anticipating.”
Kerr-Davis said it was likely there would be claims in this area, and that “ultimately it could be a ground for dismissal,” should an employee refuse to return to the office, but he doubted employers would be so heavy-handed post-pandemic.
“Employers are treading softly here,” he continued, “I haven’t seen any examples of people being heavy-handed with their employees, and I think that will be true when it comes to flexible working applications as well.
“It’s the sort of thing where you think it should be something that a manager should be able to work out with their people, to make sure they’re delivering what the business needs, but recognising the individual needs as well.
“We’re seeing a lot of people revising their flexible working policies, suggesting that people will be allowed to work from home more often, but not just letting it go entirely and saying ‘work from wherever, whenever.’”
Across the UK workers are being told to work from home if they can to stem the spread of the Covid-19 pandemic.