Civil servants are being encouraged by their trade union to submit grievances, and staff at the Office for National Statistics are to take strike action, over the government’s requirement that they return to the physical office for a minimum of 40-60% of their working week. Where staff had previously been working from home during the pandemic, can you require them to return to the office for a minimum amount of time under a hybrid working arrangement?

If the homeworking arrangement was clearly expressed to be only on a temporary basis and not contractual, then the employee will still be bound by the “place of work” set out in their employment contract – and this will presumably be the physical office where they were working pre-pandemic. This means that you can require a return to the office in reliance on the contractual place of work clause. Do consult with your staff though in advance of your proposals and give adequate notice of the return date (perhaps implementing it on a phased basis), to avoid being in breach of the implied term of mutual trust and confidence.

However, if the homeworking arrangement has become permanent, for example following a flexible working request or because you otherwise agreed to permanently change the employee’s contractual place of work, it’s much more difficult to require a return to the office as their place of work is now their home. Here you must go through a full consultation process with a view to seeking the employee’s consent to change their place of work and you’d need to be able to justify why a return to the office for some of their working time is necessary. If all your attempts at compromise and negotiation fail and the employee still refuses to consent, it may be possible to look at dismissal on notice with an offer of re-engagement under their pre-permanent homeworking terms, but this should be the absolute last resort, and there’s still a risk of it being an unfair dismissal.