Can your boss make you work from home or the office?
Amanda Hamilton, from the National Association of Licensed Paralegals, breaks it down for us
By Amanda Hamilton, NALP
As we gradually return to some kind of normality, the question arises whether or not your employer can force you to continue working from home if you don’t wish to do so, or vice versa?
The answer to this question depends, in a small way, on whether you have an employment contract which states where your place of work will be. Of course, there’s always room to negotiate if your employer is approachable enough. Unprecedented times demand unprecedented negotiations!
Many of us – myself included – may not yet be happy to commute on public transport into work like we used to do. On the other hand, you may be lucky enough to live within walking or cycling distance of your place of work. But how safe do you feel about returning, especially if you know that the office, factory, studio (or whatever the place of work may be) has numerous employees? And how would you feel if your employer demanded that you return to your workplace, but you still feel uncomfortable about it?
Of course, there are plenty of us who are very keen to get back to our colleagues and may well be wishing to go back to the office before our employer even asks us to.
I suggest that the option should be a matter of choice.
If you have been working from home and have the facilities to do so, and your employer has been quite happy with your productivity, then there should be no reason why you can’t negotiate with your employer to continue doing so. And while government guidelines are still recommending people work from home, then your employer will be hard-pushed to force you back to the office.
On the other hand, if a job cannot be done satisfactorily from home and your employer can demonstrate this, then it may be difficult for you to claim any rights to continue working from home if your usual place of work, pre-COVID, was your employer’s office.
But what if you’re sick of working from home? You miss your workmates, the kids are driving you mad, you can’t get that work-life balance right and you enjoy going to work, but your employer tells you to continue working from home. Can you be forced to comply? This will depend on what place of work (if any) is specified in your contract of employment.
For example, if your contract states that ‘your place of work shall be xxx’, then that should be where you work. However, if the employer has taken the unilateral decision (perhaps because of a drain on finances due to lockdown) to cancel the lease on the work premises (without consultation), and there is no longer a possibility of working from xxx, then there could arguably be a claim for breach of your employment contract and wrongful dismissal at common law.
Regardless of your employment contract, while the government guidelines say ‘work from home wherever possible’, your employer may be able to justify his/her insistence that you continue to work from home, even if your contract stipulates your place of work is elsewhere.
If you feel you can’t work in the new way your employer has stipulated – whether that’s asking you to stay at home or asking you to return to the office – and this, in turn, makes you feel you have no choice but to leave, you may have a constructive dismissal case against your employer.
However, you need to bear in mind the government guidelines (as mentioned) and try to understand your employer’s difficulties. Acting in a reasonable manner, under all the circumstances, should be the order of the day. Also, if matters do end at a tribunal, your attempts to be reasonable and find a solution will work in your favour.
Nevertheless, it’s a delicate situation. I’ve seen some business owners ask their employees what they would prefer to do, and quite often this works out well. Alternatively, some employers have a rota system in place where employees come into the office two or three days per week – by encouraging employees to take it in turns to come in, they’re helping to maintain safety.
Whatever the situation, we haven’t experienced the likes of this transitional period before and would hope that employers are sensitive to the wishes of their employees – and vice versa – to try to reach an amicable arrangement.
If you do find yourself in a difficult situation in relation to your employment contract and need assistance with the legalities, you can call on the services of a paralegal. A paralegal is a legal professional who is not a qualified solicitor and, therefore, will not charge the earth to help you sort things out on the legal side of things if you need them to. They may also help to diffuse any possible adverse situation by negotiating on your behalf.
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.