Return to work or hybrid working? The legal considerations for an employer

The landscape of the working environment has changed substantially since the global pandemic. Many businesses have been forced to reconsider working practices, with many now allowing hybrid or remote working to provide a safe system of working, and keep staff engaged. However, as covid restrictions have relaxed, some businesses are finding it difficult to attract workers back to the office on a full-time basis.


Firstly, if the employees’ contract confirms their place of work is the Company’s premises, then the business may be entitled to rely on this clause and ask the employees to return to work there. There is no statutory right to work at home, and many employers require staff to be physically present in the office for a variety of reasons such as to meet customer/client demand, protect the operational security of their business, facilitate career development and learning, and promote employee engagement. If you do wish employees to return on a permanent basis however, you should carefully review the communication you had with staff during any furlough, hybrid or remote working arrangement to ascertain exactly the contractual terms which currently apply. You should also consult with them, allow an appropriate period for employees to raise any concerns and, if required, serve written notice when you expect the employees to return to work on a permanent full time basis.


Implementing permanent changes to employees’ location, working hours and pay can carry inherent risks if the employees do not consent to the changes. As mentioned above, it is therefore crucial to examine the terms of employment under which your employees are currently working before you attempt to require them to return to the office. If the employees consent to the changes, then this arrangement should be straightforward. You could however face resistance if working home has become a permanent change to the employment contract and employees can also point to numerous benefits for example, greater flexibility, decreased travel costs and increased productivity. The business may also have to deal with employees’ health and safety concerns, caring responsibilities etc and in taking any decision about returning to the office, you ought to ensure you do not act in a manner that could be indirectly discriminatory for working parents or carers, for those employees with a disability, or result in a detriment for employees who have raised health and safety issues about their proposed return.


You should be aware that even if you wish employees to return to the office full time, under the Flexible Working Regulations (NI) 2015, certain employees have the legal right to submit a flexible working request, which could comprise a request for remote or hybrid working. The request must be dealt with in a proscribed time frame and you can only reject the application on business grounds, which may be difficult if the employee has been satisfactorily working from home/hybrid working during the pandemic.


Keeping employees motivated and productive is a strong consideration for any employer. If the nature of your business is suited to hybrid working, and this arrangement has proved successful during the pandemic, then continuing with this model may be beneficial, and drafting a carefully worded hybrid working clause into the contract and staff handbook is advised. It is important that the employees clearly understand if, and when, they are required to be in the office for a minimum number of days. Such policies can also deal with data security, home working risk assessment and equipment, and performance review. It may be a consideration for the business to standardise all employment contracts going forward to reflect this new way of working. Potential new recruits should be placed on contracts that reflect the working model most suited to the business’ needs.


Finding the right model of working is key for all employers. The pandemic has shown that businesses and employees have the skills to adapt and overcome the most challenging of circumstances.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.