How to bring staff back to working in the office

The COVID19 lockdowns saw many employees work from home for the first time, and it is a luxury that many have gotten used to and do not want to give up lightly.

The office verses work from home debate is a hot topic with arguments on both sides. Whilst some say working from home furnishes employees a greater ‘work life balance’ and saves time and costs on commuting, others believe that the negatives outweigh the positives and those staff members not attending the office cannot contribute to brainstorming sessions, networking, nurturing junior talent and business development.

In our own industry we have seen one large City firm make a groundbreaking move to encourage staff back to the office. The firm in question has introduced a policy whereby staff can choose to work from home full time, but in doing so they must accept a 20% pay cut. Those staff attending the office are expected to be in the office 60% of the time (i.e. they will be allowed to WFH for 2 days a week) and will still receive their full salary.

Five commercial reasons why working from home may not good for employers and staff

  • Morale – Having a happy workforce is essential to a business’ success and productivity. With some employees working from home alone in a home office or at the kitchen table, they cannot interact with their colleagues as easily and a sense of camaraderie is lost. Staff that work from home can’t get involved in lunches or after-work drinks with colleagues, and the days of a Zoom quiz are long gone. It is increasingly likely that staff working from home may begin to feel isolated. As well as this possibly having an impact on productivity, it may ultimately have a negative impact on employee’s mental health.
  • Training – Being around colleagues with a breadth of experience allows for better training. Even by simply overhearing conversations in the office junior staff can pick up on the small nuances and best practices from senior colleagues, and the ability to swivel round on your chair and ask a quick question is lost when staff aren’t in the office. Waiting 30 minutes for a reply by email just isn’t the same. Being in the office also means senior staff can also better supervise and interact with junior staff to pass on knowledge and industry experience. Internal training sessions can also be more interactive and productive when everyone is together, it allows for a more free flowing discussion which results in greater productivity.
  • Supervision – As many managers and senior staff will know, if is difficult to supervise and manage staff that work fully remotely. It is difficult to know whether the staff member working from home is at their desk working or in the garden enjoying the summer sun with a laptop perched on the table. Working from home requires a certain degree of trust, and trust can be difficult to build when a relationship is forged over emails and not from face to face interactions with colleagues.This isn’t just about enforcing a puritanical working culture. In our own industry, professional indemnity insurers increased premiums on the basis that junior lawyers were less likely to be as closely supervised, and are therefore more likely to make mistakes.
  • Business Development – With lockdowns over and the world moving on from the ‘new normal’ to the old normal, the art of the face to face meeting is once again a virtue. A member of staff who doesn’t come to the office is unlikely to travel in to meet a client and work on business development. Many of the office based jobs that transferred to being fully remote at the beginning of the pandemic are in professional service industries, where a personal connection can be of profound importance. Just as we have said office working can help foster relations between staff, the same is true between staff and clients.
  • Networking – Similarly to business development, networking with others in the sector (and adjacent sectors) is vitally important and having an effective and varied network of colleagues and contacts can be a hugely valuable asset. At least some of the value added by a commercial lawyer is the number of accountants they know.  An employee that isn’t attending the office is unlikely to be attending networking events.

Legal position on bringing staff back to office

As we have previously discussed, a City law firm has offered staff a choice: Work from home permanently but sacrifice 20% of their salaries or maintain their current salary and attend the office at least 3 days a week. Is this approach lawful?

An employment contract can always be amended by consent. If the employer and employee both agree to change the terms of employment, then the contract can be changed (subject to the usual rules of amending contracts – such as the need for valuable consideration). It is even possible, in some circumstances, for employment contracts to be amended by consent simply through the conduct of the parties, without a formal written deed of amendment or a new employment contract.

The question of whether staff can be brought back to the office should always begin with what the employment contract says, followed by a consideration of whether that contract has been amended by the agreement of the parties (whether or not that amendment was in writing). Assuming that the contract of an office based worker has not been amended to make home working permanent, then the presumption must be that the employer is entitled to require staff to return, and can agree to place conditions (such as the salary sacrifice mentioned above) on any agreement to make home working the norm.

However, in some circumstances employees might have an argument that their contracts provide for home working. Care should also be taken to avoid adopting a policy which might be directly or indirectly discriminatory against protected characteristics (such as age, sex, disabilities etc.) of employees. For instance, a sudden return to home working might be regarded by staff as being indirectly discriminatory against working parents.

In difficult cases where agreement to amend a contract by consent is not possible, there may be other options open to employers.

Performance Plans

If employers have concerns over the productivity of particular employees who are working remotely, they could look to implement a performance improvement plan for those members of staff.

The performance improvement plan could stipulate that the employee(s) are required to attend the office and their performance will be reviewed regularly and once performance returns to the expected level then the possibility of flexible working can be discussed.

Incentives

Although some staff might feel isolated working from home they may well be enjoying the lifestyle and ease that comes with it. Having a workspace that they have control over and can make their own.

If it is within budget, freshening up your office could be a way to encourage staff back. Plants, a stocked drinks fridge and a break out space away from the desks and computer screens are all things proven to increase employee positivity and productivity.

Summary

Of course, every business is different, and there will be some employers (particularly smaller or newer companies) who may be keen to embrace home working, with the significant savings it presents obtaining office space. For these employees the emphasis may not be seeking the return of employees, but how to place home working on a more stable and permanent footing, perhaps by adopting a formal homeworking policy. Again, the considerations regrading changes of employment contracts will be at the fore.

Gannons are happy to help with any of these issues – do drop us a line if you need assistance.

Alex Kleanthous

A highly experienced, tactically astute yet practical litigation lawyer, Alex has 30 years experience in resolving disputes.

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