Summary
- An employer may generally require an employee to return to the office from remote working on the basis of their managerial authority.
- If remote working has been clearly agreed in the employment contract or has become an essential term of the employment relationship, the employer cannot unilaterally terminate the arrangement for remote working.
- Temporary remote working arrangements made during the coronavirus pandemic do not automatically become permanent rights without a separate agreement or established practice.
An employer can usually require an employee to return to the office. However, the situation may be different if remote working or the place of work has been agreed in the employment contract. Patrik Stenholm, Head of Legal Services at Pro, answers the most common questions about ending remote working.
Can an employer require an employee to return to the office?
In principle, yes, they can. Under their right to manage and direct work, employers have a fairly strong right to decide where and when work is carried out.
However, the employer’s rights may be restricted by the employment contract, a separate remote working agreement, a collective agreement or established practice. Therefore, each employee’s situation must be assessed on a case-by-case basis.
What if remote working has been agreed in the employment contract?
If the employment contract clearly stipulates the right to work entirely or to a certain extent remotely, the employer cannot generally change this condition simply by issuing new remote working guidelines. An employment contract may be concluded verbally, in writing or electronically.
The decisive factor is whether remote working has been agreed. It is a different matter if, for example, the employee has been granted the right to a maximum of three days of remote working per week. Working remotely 100 per cent of the time is quite rare. It may also have been agreed that remote working is carried out in accordance with the employer’s guidelines in force at any given time.
In the case of a separate remote working agreement, it is also important to check whether the agreement is permanent or fixed-term, and under what conditions the arrangement can be terminated. A verbal agreement regarding remote working may be binding, but proving its existence or content retrospectively can be difficult.
Can remote working become an established condition of employment?
It is possible, but the conditions are quite strict. The mere fact that remote working has continued for a long time does not automatically mean that the employee has acquired a permanent right to remote working. If a clear practice has continued for several years and has also been allowed to continue without change, the employee has justifiably relied on the remote working arrangement continuing.
The assessment examines, amongst other things, the duration of the practice, its regularity and whether the arrangement was intended to be permanent. No specific number of years has been identified in case law after which remote working would be deemed to have become a condition of employment. In my view, for example, a practice that has continued for four years following the end of the coronavirus pandemic does not, on its own, settle the matter.
Does the COVID-19 period affect the assessment?
Yes, it may. During the pandemic, remote working was often based on exceptional health and safety grounds. This may have been underpinned by a general arrangement announced by the employer or by individual solutions. If the arrangement was intended to be temporary, it is more difficult to invoke it as an established term of the employment relationship.
It is worth clarifying what has been discussed or agreed regarding remote working since the pandemic. The situation may be different if a separate agreement on continued remote working has subsequently been made with the employee. If remote working has become an essential term of the employment relationship, the employer cannot change or remove it by mere notice. A change is only possible if the employer has grounds under the law to terminate the employee’s employment contract.
What if the commute is long or the employee has moved to another town?
A long commute or a move does not, in itself, usually entitle an employee to continue working remotely if the agreed place of work is the employer’s premises.
It is still worth discussing with your employer, for example, a transition period, concentrating your office days, or an individual remote working agreement. If an employee has moved to a completely different location on the basis of a written remote working agreement provided by the employer, it is advisable to discuss the matter with a Pro specialist.
Can an employee refuse to return to the office?
In principle, they cannot refuse, as the employer has the right to direct the work. You should not disregard the employer’s instructions on your own initiative. Unauthorised absence from the place of work agreed in the employment contract may lead to disciplinary action.
If you disagree with your employer, inform them in writing and ask for the matter to be clarified. Comply with the instruction whilst the matter is being clarified, unless a Pro specialist advises otherwise in your situation.
What should an employee do if they believe they are entitled to work remotely?
The employee should check their employment contract and any remote working agreement, and keep a record of any messages, instructions and decisions relating to remote working. If they are invoking an agreed or established right to work from home, they must be able to provide evidence to support their claim. The union’s Collective Agreement Specialist can provide assistance if needed.
First, the employee should discuss the matter with their manager and shop steward. If the issue cannot be resolved at work, they can contact Pro's Work Life Counselling. The employee should not sign a new contract or accept changes to their terms of employment until they have clarified the implications of the change.