Returning to the office: mandate or mistake?

Can returning to the office genuinely transform the workplace, or is it simply an attempt to revive pre-pandemic traditions?

Join Andrew Whiteaker and Helen Goss as they explore the shift from remote work to hybrid and office first arrangements, weighing the freedom of flexible schedules against the compelling push for in person presence to nurture company culture and ignite productivity.  They discuss the challenges businesses face in balancing employee preferences with organisational needs, and the necessity of making the office environment more attractive to foster collaboration and engagement. 

Later in the episode, the conversation delves into how American corporate policies surrounding diversity, equality and inclusion might seep into UK workplaces as cultural attitudes shift.

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Chapters

• 1:10 Businesses mandating return to the office
• 9:26 Offering flexibility
• 18:25 Potential constructive dismissal
• 22:20 Impact of US change of government in the UK

Transcript

Andrew Whiteaker: 0:03 

Hello and welcome to the Employment Law Pod from Boyes Turner. My name's Andy Whiteaker, I'm a partner in the employment team and I'm pleased to say that I am joined again today by my colleague and fellow partner in the team, Helen Goss. 

Helen Goss: 0:15 

Hello everybody. 

Andrew Whiteaker: 0:16 

And as ever with the Employment Law Pod, we are going to be talking today about some things in the news, some recent changes, some ideas or principles that we picked up on that we think would be interesting to have a chat about, and so, with that being the case, what are we talking about today, Helen? 

Helen Goss: 0:32 

Well, Andy, obviously we always, always want to be topical, so we're going to be talking about the return to the office. 

Andrew Whiteaker: 0:39 

Sure. 

Helen Goss: 0:40 

And then we're going to be talking Trump Now, before everybody starts rolling their eyes and turning off. It's really about the effect of Trump on the UK workplace going forward. 

Andrew Whiteaker: 0:53 

Yes, absolutely so. Sort of the cultural, the potential cultural impact of the change of government in the US on how we manage our staff and maybe the behaviours of our staff in the UK as well. 

Helen Goss: 1:05 

So the return to the office. Now this is very topical at the moment. 

Andrew Whiteaker: 1:09 

Absolutely. 

Helen Goss: 1:10 

Lots of big businesses are mandating and that seems to be the word that I'm hearing a lot of is mandating a return to the office. So during COVID there was a massive transformation really in the world of work. So many of us became either remote or home workers. So we were paperless, we embraced teams and zoom. There were empty offices, there were no commutes and somehow we managed it pretty much overnight yeah, absolutely. 

Andrew Whiteaker: 1:37 

I mean, we as a, as a business, we were really not set up for the entire staff numbers to be working from home, which we had to just deal with, I suppose, in within 48 hours, and we were not alone in that. 

Helen Goss: 1:55 

No, so the hybrid way of working was developed really wasn't it at that point and so many of us, I think, enjoyed that flexibility of working from home maybe two or three days a week but dipping into the office and getting all the advantages that we thought were in the office as and when required. So I think it helped a lot of people with managing their children perhaps elderly parents, dogs that certainly became a thing, didn't it? Yeah more easily because there was no commute time. They had their lunch times at home, so there was a lot of household stuff that could be done in those times. 

Andrew Whiteaker: 2:21 

Yeah, I mean, some businesses took an even more extreme approach, didn't they, where they just switched entirely to, to, to remote working. But I think, more often than not, certainly our experience is that most businesses that we have worked with or we work with, approached when they're able to get their staff back into the office, approached it on a sort of a hybrid basis. 

Helen Goss: 2:46 

I think so. I mean, there were some businesses and I think largely in my experience the smaller tech business got rid of their office space altogether, although I have seen that some of them are starting to take little office spaces because it hasn't necessarily completely worked. But for a lot of businesses productivity wasn't affected. For some the productivity actually increased. So I suppose the question is why are we forcing people back into the office? And there does certainly seem to be a backlash. So, as I said, some of the big businesses Boots. They're saying that it's on the basis of company culture. Amazon I think. People have talked a lot about amazon and they've coined the phrase invent, collaborate and be connected. It's not such a a tuneful no, it's not. 

Helen Goss: 3:36 

It doesn't roll off the tongue as effectively, but nonetheless it communicates what we know, what they mean yeah, city group JP morgan are pretty much five days a week back in the office, and ASOS, who are an online shopping organisation, in respect of their headquarters, they've taken the view that virtual meetings are detrimental to company performance, so that's quite interesting. 

Andrew Whiteaker: 3:58 

Yeah, and you know I mean entirely anecdotally. I've been speaking to clients on other matters recently considering some flexible working requests, which we might talk about in a moment. But they were telling me how they had started off at two and then they were back at three and now they're asking everyone to be back in for four days a week. So even those that have been entirely hybrid and now may be saying everyone back in, even those that are allowing a degree of hybrid working, are perhaps ratcheting up the number of days in the office. 

Helen Goss: 4:24 

Yes, and a lot of the reasons that they're giving is in-person collaboration. I do hear that word collaboration a lot in respect of wanting people back in the office. The office first culture do you think that ties into Trump. 

Andrew Whiteaker: 4:39 

Well, maybe, maybe. 

Helen Goss: 4:40 

Let's see training for more junior people. So learning, mentoring, coaching, the mental health advantage in that there has been some loneliness and lack of human interaction when people have been working significantly from home. A lot of these businesses have got expensive office space and equipment. They've invested in their workplaces, so they want that return on the investment in what they see as being that impact on productivity for the good. And some will argue to ensure consistency and a fair approach for all, which is again something we'll come back to when we look at flexible working. 

Andrew Whiteaker: 5:18 

Yeah, and I mean just to add to a couple of those maybe. I suppose what we do know is in the UK we have sluggish productivity. You know we have an issue with productivity across the board, across the economy, and so many businesses are looking at the way they operate and you know what their productivity looks like and are saying, well, look, we work in this way at the moment, we're perhaps allowing people to work from home entirely, or maybe a hybrid system of work, and it may not be making productivity worse, but it's not making it better so there's an issue there, maybe it's not growing. 

Andrew Whiteaker: 5:52 

Maybe getting people back in might assist us with that. And also, you know, most businesses aspire to be agile and fast moving and being able to respond quickly to issues that arise. If you have a disparate workforce or people that are not meeting up or not interacting with each other as as easily or as frequently as they would do if they were in person together, does that slow things down? Maybe not as easy to to actually put a figure on that or to measure it, but the simple fact that you don't have people with an easy contact with each other. 

Helen Goss: 6:25 

I mean that's an interesting concept, though, isn't it? Because a lot of organizations who are global will have a manager sitting, for example, in the States who manages a team in the UK and in France and Germany. 

Andrew Whiteaker: 6:39 

Yeah. 

Helen Goss: 6:39 

So they're not physically in the same place at all, and there may just be one person in the UK who is part of that global team so that has been a concept of people not being physically together for quite a long time. 

Andrew Whiteaker: 6:48 

Absolutely, and I can imagine there are people who might be sitting there listening to this pulling their hair out and going what are these people talking about? Actually, this is not. Our business operates in this way and it's completely agile and it's fast moving. And you know, I work for I was a seconded at a technology company a few years ago and the HRD that I worked very closely with was in the Netherlands. So there will be people who say, well, that's nonsense. Actually, we can work just as effectively with just as agile, with just as fast paced, even though we're geographically separate. I guess the point that I'm making here is that's not the perception that some businesses have, and they feel that not having people present does slow them down, does inhibit that interaction. 

Helen Goss: 7:30 

.hat's right, because a lot of companies are mandating that people come back into the office and of course that results in quite a lot of employees being resistant to the concept, and I've heard even talk of industrial action, particularly in relation to the public sector. So I thought I'd have a look at some of the ways in which employers are trying to make the workplace more attractive. But before I look at that, there is also a suggestion that there will be penalties for people who don't come into the office, so maybe bigger pay rises for those who do turn up, better promotion prospects. 

Helen Goss: 8:12 

And of course all of those carry risk from the employment legal perspective. 

Andrew Whiteaker: 8:18 

So potential discrimination and also constructive dismissal claims, yeah and I guess those can work both directly and indirectly, so you can have an express this is what we're going to do, yes, but also indirectly. You may not have expressed that it's the case that people will be more likely to gain promotion or to get good contacts or contracts or projects etc. If they're in the office than they would if they're away, but that might be the reality of the situation just because they're there, they're seen, they're present. 

Helen Goss: 8:50 

Yes exactly, I have heard cash bonuses for those that are coming in so that fits in with that. But then also I read that Jim Radcliffe and Man U, Manchester United he's offering cash bonuses for people to resign because they don't want to come in. So that's a bit of an about turn, really, isn't it? 

Andrew Whiteaker: 9:06 

Well, yeah, and it's a kind of well, this is our culture, this is how we perceive our culture, this is how we want to operate our business. If you're not on board with that, that's fine, but not here, yes, so off you go. If that's the way that you want to work, that's absolutely great. That might work for some people, but not for us. 

Helen Goss: 9:24 

It's quite a tough message isn't it? 

Andrew Whiteaker: 9:25 

Yeah, absolutely. 

Helen Goss: 9:26 

But from a more positive perspective then employers are looking at core hours so that they can offer flexibility. So if you can start at 10, then you still get to do the school drop-off, or if you finish earlier, then you can still do the school pick-up, etc. But also lovely office environments. They're warm in the winter so you don't have to put your heating on at home, and they're cool in the summer with air conditioning. So there's a whole raft of things that employers are doing, along with lots of social events so that people understand the pleasures of mixing with their work colleagues. 

Andrew Whiteaker: 10:01 

Yeah, and I think there's a hearts and minds project that businesses need to instigate here, because it's all well and good mandating, but you want people to come back because they want to come back. 

Helen Goss: 10:12 

Yeah, well, ideally. 

Andrew Whiteaker: 10:13 

Yeah, not because you're forcing them to. And if you are, for example, quite a senior individual, you've been working in a role for a long period of time, you know your job inside and out. And you might be looking at this and saying well, why do I need to come into an office? I can just sit at home. I can send emails, I can take calls. I need very limited interaction with anybody else. I'm a you know, an independent or a contributor here. I don't need to be around my colleagues to do my job. Why on earth are you forcing me to get on the train to drive in to get on a bus to come in. It's a waste of my time and it doesn't improve anything, whereas the perception of a manager is well no, actually it's much easier for me to manage people if they're here. I also want people to learn. All the points that you made earlier, but you can see how two people working at the same business would have completely different perceptions of what is best for the business, and so there's a real job to be done to try and convince individuals, if that's the way that you're going to go why this is the right direction for the business to take. 

Helen Goss: 11:18 

And you would hope that, even though some businesses are mandating again that word, that actually they are thinking of the softer side of how are we going to encourage people to think that? It is actually a really lovely place to be in the office. 

Helen Goss: 11:33 

So can employers mandate a return for a set number of days? So, whether that's five days a week, three days a week, whatever it might be, and of course the starting point is always going to be look at the contract. Now the majority of contracts state the place of work as being the office or a particular office, which, from the perspective of mandating, is helpful. So, if we do have the place of work as the office premises, then I think we've got a better chance, if that's what we want to do, to mandate that people should return to the office and that that's a reasonable management request. It sort of makes it a bit challenging if, then, if people don't comply with that, that we're going to look at disciplinary proceedings. So I do find that quite challenging as a solution to the situation. 

Andrew Whiteaker: 12:31 

It feels quite heavy-handed, doesn't it? But then again, if this is, if this is your, if this is what you say you're going to implement and this is a requirement, then if people refuse to comply with that, then what are you going to do? Because, your choice is to just say oh okay, fine, if that's what you prefer, we won't bother. 

Helen Goss: 12:48 

But that's the issue of consistency and fairness to all, which then creates quite a lot of problems. I'd really like to hear from people who have perhaps invoked their disciplinary policy in respect to people who just won't come into the office. I'd be really interested to hear how that has worked. Quite a lot of people are going to start relying on the issue of custom and practice, and what that is is essentially an implied contractual term where a certain set of circumstances has existed for quite a long time. So it's well established, consistently applied and pretty much known to everybody. 

Andrew Whiteaker: 13:28 

Notorious and certain. 

Helen Goss: 13:29 

Notorious Andy and certain. Exactly so people, employees who don't want to come in and disrupt the arrangement they currently have may say well, through custom and practice, then I work from home four days a week and I am going to refuse to come in three days a week. My hybrid way of working has been varied. The contractual terms have been varied from what was in the original contract, especially during COVID and I've been looking at that quite a lot because quite a lot of my clients have asked me about this situation and I think it is going to be quite difficult for employees to rely on custom and practice, because you remember that during COVID then the original direction for a lot of businesses was you must stay at home. So, for example, at Boyes Turner we didn't come into the office for a very long time. 

Andrew Whiteaker: 14:25 

No, I think we could have been essential workers because we're lawyers essential for the. I slightly struggle with that one, yeah but we're essential for the proper processing of justice. But nonetheless we did not come in. 

Helen Goss: 14:38 

No, we didn't. But then after a while we wanted people to come in one day a week or a certain day when we thought it would be a good idea every now and then for people to all come in. So we were constantly varying the requirement to come into the office, like, I think, the majority of businesses. 

Andrew Whiteaker: 14:56 

Yes, you sort of gently tiptoed back in and tried to work out what was working best for them. 

Helen Goss: 15:01 

Yes, exactly. So I do think that it is going to be quite difficult for employees to rely on custom and practice not impossible, and of course it will be fact specific. But in relation to that, I think it is important to not just look at the contract but also have a look and see what was agreed as a variation in writing. And did that variation specify that it was for a limited or a temporary period of time, or was it on a permanent basis? And if it was on a permanent basis, then I think that an employer is going to be in difficulties because there is a contractual term, albeit not necessarily in the contract. 

Which then brings me on to well, how can we change the contractual terms if we find that that's what we've got? 

Helen Goss: 15:47 

And I think that this is quite a challenging I keep using that word, don't I quite a challenging area, because we're going to have to consult and, depending on the numbers, that might be a collective consultation with the aim of getting an agreement. And of course that's where the flexibility that we as a business can offer is going to come into effect. But ultimately, it's that Armageddon solution, isn't it, if we can't get agreement, and we absolutely, absolutely need everybody in the office for a certain number of days. Are we going to adopt the fire and rehire, particularly as we know that the death knell is ringing? Isn't it for fire and rehire? 

Andrew Whiteaker: 16:28 

Certainly that's. Yeah, the government wants to remove or at least massively restrict the ability to do that. I mean you said we shouldn't use the word challenge, we should maybe use the word opportunity, but this does feel like a challenge. 

Helen Goss: 16:40 

It really does and it's. It's dodgy now, so it's only going to get a bit dodgier. I think that's proper legal terminology, and the risk of claims and reputational damage is quite high. So I do caution businesses who think that, oh, fire and rehire, it's really not that easy. So, consequently, flexible working requests seem to be pouring in, where people are being mandated to return to the office. Some businesses are automatically just saying no and deciding that they're just going to absorb that risk. Others are considering and I use the word considering in quotation marks knowing that actually they are going to say no, relying on one or two or three of the statutory reasons to say no, but going through the appearance of considering. But of course the risks again are quite high. 

Andrew Whiteaker: 17:47 

Yeah, and I'm sort of thinking about this and wondering whether now might be a good time, if you like, to make these, to put in place these return to work mandates, because we know the government is amending the rights around flexible working, so shifting the reasonableness from the way in which you carry out the investigation into the request, instead making the decision to turn it down or not reasonable. 

Helen Goss: 18:13 

Yes, and so now it's a big turnaround. 

Andrew Whiteaker: 18:16 

It is a bit of a big turnaround, so maybe now is the time to do it and to have those arguments now, while the law is just about the process you follow rather than about the decision that you make. 

Helen Goss: 18:25 

Yes, because you know the risks are fairly high, aren't they? Again, it's potential constructive dismissal, it's discrimination, and particularly indirect sex discrimination. But of course that brings me then on to the issue of people who have a disability, and of course a flexible working request may not be the appropriate way of dealing with that situation, but actually consideration of reasonable adjustments. And it may be a let out for some businesses in that they haven't agreed a flexible working request because they say no to those, if indeed that is their policy but that they are considering what reasonable adjustments a person with a disability has, particularly in relation to travel or being in the office or in the office environment yeah, and there's a different onus on an employer when they're considering a flexible working request than there would be when they're considering reasonable adjustments. 

Andrew Whiteaker: 19:20 

I suppose the clue is in the word, isn't it? Reasonable adjustments. So flexible working request, you can just say, well, we just don't think it's going to work very well for our business, so no, whereas a reasonable adjustment it's about making adjustments to enable an individual to do their role. And if it's a reasonable thing that you can do, even if it might be suboptimal, even if you prefer it not to be that way, if it is reasonable, it's an obligation to do it. 

Helen Goss: 19:43 

Well, it's essential, isn't it? It's absolutely essential because otherwise you're going to have a disability discrimination claim on your hands. 

So those are the main legal issues, but I just had a thought of what I was going to say as a conclusion, really, to that subject, in that I think the business has got to really think very carefully. What are the good business reasons why people should return to the office? 

Andrew Whiteaker: 20:10 

Yeah, and that's not just for the purpose of identifying your reasonable grounds that you're turning it down, but also to assist you in the sell yes, explaining to your colleagues, why you need this to happen. 

Helen Goss: 20:20 

Exactly make it attractive to be in the office. I think it's probably sensible that you consult with your staff as to their views. I know here we quite often do a survey and bit by bit, I think the numbers who are happy to be in the office are increasing, aren't they, as people start to see the advantages of being in the office, being with their work colleagues. 

Andrew Whiteaker: 20:49 

Yeah, I think so. And I would also add to all of this avoid corporate catfishing. So avoid holding yourself out as an employer that wholly engages and appreciates and facilitates flexible working and different, hybrid ways of working, when the reality is not true that you don't, that you do not and that obviously that can manifest itself in those sort of issues, but also just more generally, you know if you're, if you have a particular culture or a particular way of working within your business. Be true to that, because as soon as you start holding yourself out of something else, then sure, you might have, it might find it easier to recruit staff, but you'll probably find it much more difficult to retain staff. 

Helen Goss: 21:29 

Yes, well, that's a whole new subject, that we may have to address in another podcast. 

Helen Goss: 21:35 

I think it's also essential that if you are mandating a certain number of days and that's an increase for some people you've got to give them some time to make alternative arrangements so their dog walkers, their child minders, etc. Build in some flexibility with core hours so that people can do the school drop-off or the the pickup. It doesn't mean a change in the number of hours that that these people are working, it just means that they have some flexibility as to the time of the timing of those hours. And then also think of the cost of hiring people who who don't want to work in the office either all the time or for a set number. You know the cost of bringing in new people and losing talent from your team is really significant. And I think the last point I've got is, if you are going to mandate and absolutely insist on a set number of days, then accept the risks that go with that. 

So, Andy, come on, then let's talk Trump. 

Andrew Whiteaker: 22:22 

Fine, okay, so this is my Andy’s final thought to finish off the podcast today and hasten to add that this is a legal podcast, it's not a politics podcast no, important for everyone to keep that in mind here, and the reason that I'm talking about this today is that I was at a training session a couple of weeks ago and an HR manager asked me with the change of government in the US, how do you see that impacting upon employment law in the UK? 

Andrew Whiteaker: 23:07 

and my initial thoughts, my initial response was well, not at all, really, because, actually, simply because there was a change of government in the US doesn't mean the legislative framework in the UK has changed at all, and in fact, we know from the Employment Rights Bill and other announcements that have been made by the government that they are continuing to enhance, for example, rights around diversity, equality, inclusion. We know issues around gender pay being expanded out to ethnicity pay and disability pay reporting, for example. So, if anything, the direction of travel is is different and and in the opposite direction to what we're seeing in the US. But having given a bit more thought to it, I think there are potential implications for UK employers and I think number one we might have to think about how sort of multinational businesses are going to respond to this, especially those that have US you mean? 

Helen Goss: 23:59 

I was going to say the global ones yeah, a lot of the diktats come down from the US, don't they? 

Andrew Whiteaker: 24:04 

Yeah, so already in. So some US companies have sort of quite strict affirmative action expectations around them. We perhaps might see those being removed and that might actually bring them closer to what we have in in the UK and in Europe where those sort of affirmative actions are, generally speaking, not used. 

Andrew Whiteaker: 24:24 

but at the same time, if we're seeing federal employees in the US being dismissed where they have D&I responsibilities and a general agenda pushing back against what they perceive as being steps too far in that direction, how's that going to affect the budgets of those sort of multinational businesses? How's it going to affect the budgets in the UK how much time and money they're going to invest in those things you mean for diversity initiatives Exactly that, yes. 

Andrew Whiteaker: 24:49 

So how's that going to impact? Also if we do see some broader legal changes in the US? Many multinational businesses that we work for try and have, as far as possible, global policies. Well, that's going to be much more difficult to have a global approach if actually you have Europe and the UK and America diverging and going in different directions around what's expected. So there is that as well. But I think also it can impact upon employees, and not just employees of multinational businesses, but just your employees more generally, because there will be people out there who think that Trump's election is the best thing in the world and they hang on every word and letter typed by Elon on X and listen to Joe Rogan podcast and feel that maybe this is a sea change, that actually, whereas they might have felt inhibited in what they say before, actually now free speech is back actually and I can say what I feel and I can respond how I feel. 

Helen Goss: 25:53 

So you mean conflict in the workplace because of people expressing their, I suppose, political and diversity? 

Andrew Whiteaker: 26:00 

views. Yeah, absolutely. If we get our cultural, we get most of our cultural impact or what we consume culturally, from the US. If there is a cultural change in the US, you can absolutely see how people in the UK may perceive or feel that there's been a cultural shift in the UK as well, and therefore behaviours that were not permitted or phraseology or language used in the workplace that may have not been permitted before. 

Andrew Whiteaker: 26:27 

Maybe there's a loosening up and a greater freedom to say what you think, but the point is that the law hasn't changed in the UK and, if anything, it's heading in the opposite direction. So might we see in the UK greater, more issues arising where people do speak their mind or or engage in a different way because they feel that they've now been given a green light to do so, or just greater pushback on training and DE&I initiatives? There'll be more people who feel that they can stand up and say well, I disagree with this, I don't think this is appropriate or this is the wrong direction for the business to be heading in. 

Andrew Whiteaker: 27:03 

So I don't see there being any legal changes, but I do see there potentially being some cultural changes, maybe with the way that the wind has blown in the US and that impacting in the UK as far as the way that businesses operate, we know, as I said earlier, we can see some new rules around gathering data around diversity and disability as well, to enable us to undertake ethnicity pay gap reporting or disability pay gap reporting in due course. How's that going to impact upon businesses that may be owned by US companies, where there might be pressure on them to not gather this sort of information in the future? So again, how does how does that work and how do the businesses deal with those challenges? 

Helen Goss: 27:47 

Well, that's definitely something we're going to have to watch and then discuss when there is more information. 

Andrew Whiteaker: 27:54 

Yeah, absolutely so I think. In short, my initial short answer of well, nothing much is going to change, is it? I'm reconsidering that and I think there may be some things for UK businesses to keep their eye on. 

Helen Goss: 28:06 

Let's watch. 

Andrew Whiteaker: 28:07 

Okay, so well. 

Helen Goss: 28:08 

That wraps it all up for today, as thanks very much, Helen, for joining me today and for sharing your thoughts. Oh, thanks, Andy, and just to let everyone know that there is a follow-up article on the matters that we've talked about today on the website, and if people do have experiences of getting people back into the office, I would really, really love to hear absolutely, and thanks everybody for listening to the podcast. 

Andrew Whiteaker: 28:30 

If you're interested in checking out any more episodes in this series, then you can, of course, go to the Boyes Turner website or, alternatively, you can follow or subscribe wherever you listen to your podcasts. So thanks again and goodbye.