Can Your Boss Force You Back to the London Office?: Q&A

(Bloomberg) --

As employers grapple with how to get people back into the office, lawyers have one key message for them: tread carefully, because lawsuits are coming.

After 18 months of home working, U.K. workers are finally heading back to offices in significant numbers. In the U.K., the City of London saw more people back at their desks this week since lockdowns were first imposed in March 2020. But the road to normality is unlikely to be smooth as employers juggle a spectrum of needs and worries from their staff.

It won’t be as simple as employers simply telling workers to get back in and they expect some resistance. Issues around employment contracts, health and safety policies, and vaccines are all potential pitfalls, and some disputes may to lead to a rise in litigation.

Bloomberg News spoke to three employment lawyers about how the law in England and Wales will impact the return to the office. 

Q. Will there be a rise in litigation from asking people to come back to the office?

“This is certainly an area which will keep tribunals busy over the coming months and years,” Rob Briggs, a lawyer at London-based law firm Bird & Bird, said. 

“Yes, definitely,” Sarah Henchoz, a lawyer at Allen & Overy, said. “There’s already been a couple of cases related to when Covid came at first. It takes a while for cases to trundle through the tribunals.” 

“Almost definitely,” Sarah Taylor, a professional support lawyer at Stevens & Bolton, said. “If there is a stalemate and it results in employment ending then I can see litigation arising from this.”

Q. Could it be considered a breach of contract if employees refuse to come back to the office?

“If employers ask employees to return to the office and they refuse to do so then in principle, that is a breach of their employment contract and also a failure to comply with what we refer to as a “reasonable management instruction,” Briggs said. “But all of the facts, including mitigating facts from the employees perspective would need to be considered.”

Q. What legal enforcement mechanisms do employers have?  

“We recommend that employers formally consult with employees regarding their expectations, or indeed their requirements, and speak to individual employees if they have particular concerns,” Briggs said. “Most employers are taking a consultative approach to this and are exercising a degree of patience with employees.”

Q. Will widespread changes in employment contracts start to happen?

“There are some companies that are not implementing new contractual arrangements, but implementing hybrid working policies. But these are just policies that are setting out a framework for working from home,” Taylor said.

“Clearly if you make any changes to permanent positions you have to follow a lawful process and ideally get consent and consult where necessary,” she said.

Q. Can employees use health and safety concerns as a reason to not come back?

“Employees have to show that they have an “imminent fear of danger” against them,” Henchoz said. “It’s very fact specific and depends on what the alternative can be. It would also take into consideration whether they were still going out with friends and still socializing.”

Q. What about employers mandating vaccines?

“Mandating vaccination is very difficult because of course you will have employees who are not able to be vaccinated for religious, health or cultural reasons,” Henchoz said. “It runs the risk of that being discriminatory. Is there a suggestion that an unvaccinated person is more likely to transmit Covid. I’m not sure there is medical evidence for that. The government doesn’t mandate vaccines.”

©2021 Bloomberg L.P.