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Removing home working policies

Newly appointed Twitter chief executive Elon Musk has been making legal waves recently, cutting 3,700 employees from the workforce being met with legal action.

After completing the $44bn purchase of the social media platform, Musk made the controversial decision to fire several members of the executive team as part of an overhaul to make Twitter profitable.

In a company-wide memo two weeks ago, staff were informed they would receive an email if they were being let go. But before those emails arrived, many found they could no longer access their work accounts or log into their laptops.

According to Bloomberg, five Twitter employees have filed a lawsuit, as Musk did not comply with the federal Worker Adjustment and Retraining Notification Act, giving US workers at large employers 60 days’ notice for mass sackings.

Hot on the heels of the firing scandal, The Telegraph reported last week that Musk allegedly plans to scrap Twitter’s ‘work from anywhere’ policy – which was introduced in the pandemic – as of today.

But as more UK-based employers try to dial back on remote working in favour of a hybrid, and/or a fully office-based model, People Management asked employment lawyers what would happen if businesses suddenly revoked working from home policies?

Contract wording is key

An employee’s place of work should be set out in their employment contract, and post pandemic many employees have experienced changes to their place of work to incorporate hybrid working or in some cases a wholly flexible 'work from anywhere' approach.

Even if the place of work listed in the employment contract has not changed from the traditional office location, where employees have been allowed to work from other locations on a regular basis it is likely the employment contract will have been varied by the custom and practice.

Any proposed changes to that practice are likely to need the consent of employees.

The amount of time an employee has worked remotely will also be a factor, highlights Samantha Dickinson, partner at Mayo Wynne Baxter, who warns employers could face tribunal claims of constructive unfair dismissal. “Even a perk or policy that is expressed to be non-contractual can become binding over time, so reversing that can amount to a breach of contract, entitling an employee to resign and issue proceedings,” says Dickinson.

Depending on how a remote working policy is written at the outset, what the contract of employment says and how long an employee has worked from home will all be relevant considerations in such a claim, but only employees with at least two years’ service can pursue this course of action.

Rachel Mathieson, senior associate in the employment department at Bates Wells, says only employers that implemented remote working temporarily, perhaps because of the pandemic, would have any semblance of right to insist workers return to the office in accordance with their contracts. “All employment contracts will specify a place of work, which is typically your office. If your organisation’s employment contracts specify your office as the place of work, and you have only temporarily allowed home working because of the pandemic, and it was explicit to staff that this was a temporary arrangement, then you arguably have the right to insist your workers return to the office in accordance with their contracts.”

The legal pitfalls of a sudden policy change

Employers that suddenly demand that a previously remote working employee attend the office could face several tribunal claims, according to Michael McCartney, employment partner at Fladgate: “Employees who have been hired with a work from home provision in their employment contract will be able to argue that a unilateral change to their work location constitutes a breach of contract.

For larger employers, if a contractual change is likely to lead to 20 or more employees leaving, the employer has an obligation to consult with staff for either 30 days or, if 100 or more are impacted, 45 days. A failure to do so would lead to a potential award of 13 weeks’ pay per employee.

Remote employees who have a disability or caring responsibilities could also launch a tribunal claim remembering that there is no requirement for a minimum period of service in discrimination claims.

Communicate and consult

Employers may well have a sound business case for wanting their workforce back in the office, whether on a hybrid or full-time basis, but, when doing so, clear communication and consultation are imperative. "Where employee consent on policy change is not forthcoming and the employer seeks to force the change, they will need to present a credible business rationale for the change and also consult with employees about the changes.”

Rather than unilaterally enforcing change leading to potential disputes, many employers have found success in getting people back to the office through collaborative discussion and incentives. Treating staff as part of the conversation and allowing them to feed into any decision is an especially effective means of retaining talent, which will be particularly important when competitors continue to offer flexible working arrangements.

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