Newly appointed Twitter chief executive Elon Musk has been making legal waves this month, with his plans to cut 3,700 employees from the workforce being met with legal action.
After completing the $44bn purchase of the social media platform, Musk made the controversial decision to fire several members of the executive team – including its legal affairs and policy chief, Vijaya Gadde – as part of an overhaul to make Twitter profitable.
In a company-wide memo last week, staff were informed they would receive an email if they were being let go. But before those emails arrived, many found they could no longer access their work accounts or log into their laptops.
According to Bloomberg, five Twitter employees have filed a lawsuit, as Musk did not comply with the federal Worker Adjustment and Retraining Notification Act, giving US workers at large employers 60 days’ notice for mass sackings. Mike Tremeer, employment partner at city law firm Fladgate, describes the process as “painful to watch”, adding that it seems to be a “real backwards step in terms of employee relations and dignity”.
Hot on the heels of the firing scandal, The Telegraph reported last week that Musk allegedly plans to scrap Twitter’s ‘work from anywhere’ policy – which was introduced in the pandemic – as of today.
But as more UK-based employers try to dial back on remote working in favour of a hybrid, and/or a fully office-based model, People Management asked employment lawyers what would happen if businesses suddenly revoked working from home policies?
Contract wording is key
Any employer wishing to revoke a remote working policy or “follow Elon Musk’s approach to a forced return to the office” must tread carefully, according to Rebecca Thornley-Gibson, partner at DMH Stallard, who advises HR to scour the contract. “An employee’s place of work should be set out in their employment contract, and post pandemic many employees have experienced changes to their place of work to incorporate hybrid working or in some cases a wholly flexible ‘work from anywhere’ approach,” she says.
“Even if the place of work listed in the employment contract has not changed from the traditional office location, where employees have been allowed to work from other locations on a regular basis it is likely the employment contract will have been varied by the custom and practice. Any proposed changes to that practice are likely to need the consent of employees.”
The amount of time an employee has worked remotely will also be a factor, highlights Samantha Dickinson, partner at Mayo Wynne Baxter, who warns employers could face tribunal claims of constructive unfair dismissal. “Even a perk or policy that is expressed to be non-contractual can become binding over time, so reversing that can amount to a breach of contract, entitling an employee to resign and issue proceedings,” says Dickinson.
“Depending on how a remote working policy is written at the outset, what the contract of employment says and how long an employee has worked from home will all be relevant considerations in such a claim, but only employees with at least two years’ service can pursue this course of action.”
Antonio Fletcher, head of employment at Whitehead Monckton, agrees that claims of constructive unfair dismissal could arise from a sudden contractual change, and says there could be flexibility. “If remote working arrangements are clearly subject to review and are not a part of the permanent contract of employment, employers will have greater flexibility in changing these arrangements, but should always do so within previously agreed parameters and adopting a reasonable approach to mitigate the risk of claims,” says Fletcher, adding that, beyond any legal implications, “employers should always be mindful of the impact that sudden changes of direction can have on their workforce”.
Rachel Mathieson, senior associate in the employment department at Bates Wells, says only employers that implemented remote working temporarily, perhaps because of the pandemic, would have any semblance of right to insist workers return to the office in accordance with their contracts. “All employment contracts will specify a place of work, which is typically your office. If your organisation’s employment contracts specify your office as the place of work, and you have only temporarily allowed home working because of the pandemic, and it was explicit to staff that this was a temporary arrangement, then you arguably have the right to insist your workers return to the office in accordance with their contracts,” explains Mathieson.
The legal pitfalls of a sudden policy change
Employers that suddenly demand that a previously remote working employee attend the office could face several tribunal claims, according to Michael McCartney, employment partner at Fladgate: “Employees who have been hired with a work from home provision in their employment contract will be able to argue that a unilateral change to their work location constitutes a breach of contract.”
“In these circumstances, they could either resign and claim wrongful dismissal, equating to their notice period, and if they have more than two years’ service [they could claim] unfair dismissal,” he says, adding that things could get nasty if the employee refuses to accept the change by continuing to work from home, “forcing their employer to dismiss them”.
For larger employers, if a contractual change is likely to lead to 20 or more employees leaving, “the employer has an obligation to consult with staff for either 30 days or, if 100 or more are impacted, 45 days. A failure to do so would lead to a potential award of 13 weeks’ pay per employee”, explains McCartney.
Dickinson adds that remote employees who have a disability or caring responsibilities could also launch a tribunal claim, highlighting that “there is no requirement for a minimum period of service in discrimination claims”.
Mathieson emphasises the need for employers to be aware of workers with “specific circumstances” that warrant departures from their standard policy. “For example, employees with health factors may mean that working from home, at least part time, is necessary. Any workplace provision, criterion or practice that disadvantaged these workers might amount to indirect discrimination, and employers are also under a duty to make reasonable adjustments for workers with a disability, which may include allowing flexible working,” says Mathieson.
Communicate and consult
Employers may well have a sound business case for wanting their workforce back in the office, whether on a hybrid or full-time basis, but, when doing so, clear communication and consultation are imperative. Thornley-Gibson points out: “Where [employee] consent [on policy change] is not forthcoming and the employer seeks to force the change, they will need to present a credible business rationale for the change and also consult with employees about the changes,” she says, adding that employers should approach the requirement “reasonably”.
Dickinson warns that it is “dangerous to demand anything of employees” and reiterates the case for reasonable decision making. “In law employers have to act reasonably in their dealings with staff and, as most employers recognise, you are more likely to get agreement from people if you consult with them over workplace policies, explain the business rationale behind your thinking and try to persuade them to agree to the change,” she says.
“An employer that does want to reverse a remote working policy, or any policy, can do so lawfully, but they will need to show they have a sound business reason and demonstrate that they followed an open and transparent consultation process.”
Indeed, the benefits of working in the office, at least part of the time, are clear, says Mathieson, who highlights “increased collaborative working, especially cross-departmentally, increased networking opportunities, better supervision, and a more unified organisation culture”. However, she advises against a forceful approach.
“Rather than unilaterally enforcing change leading to potential disputes, many employers have found success in getting people back to the office through collaborative discussion and incentives,” says Mathieson. “Treating staff as part of the conversation and allowing them to feed into any decision is an especially effective means of retaining talent, which will be particularly important when competitors continue to offer flexible working arrangements”.
She adds that a discussion would give employers the opportunity to “emphasise why you think office-based working is so beneficial”, and give staff time to “adjust” to the new arrangements and make changes to their “personal life”, which an immediate change would not.
