What to Do If Your Boss Is Asking You to Return to the Office

So-called “Freedom Day” is almost upon us. Boris Johnson has said that measures such as mandatory mask wearing and social distancing will be optional from the 19th of July as part of the easing of lockdown restrictions. On that date, the government’s directive to work from home will end and employers are expected to start calling staff back into workplaces – if they haven’t already.

After all this time working remotely, you might be wondering whether your employer can demand you return to the office. Basically: they can. But that doesn’t mean workers feel safe enough to do so or that they’re logistically able to return straight away. So what can you expect if you’re asked to return to the office? And what exactly are your rights if you don’t want to come back in?

Firstly, employers are legally required to meet safety rules for returning workers, including COVID-19 risk assessments that are specific to each workplace and job. This might mean practical measures such as improving ventilation – something the TUC is encouraging – or more organisational measures like having a flexible working rota and employees coming in on different days.

“Employers must carry out COVID safety risk assessments in consultation with staff and unions, and we recommend that they publish them so that staff and clients can easily see them,” TUC general secretary Frances O’Grady tells VICE, adding that you can, as an employee, request to see that assessment.

If you believe you’re not safe back at the office, you can take action. Workers have a right to be safe at work, whatever work they do. Section 44 of the Employment Act 1996 gives workers some protection if they believe they face imminent danger in the workplace. The TUC advises to raise your concerns with your employer and union first and keep a careful record of your employer’s response and the ongoing situation. Technically, you can legally leave the workplace if you’re in danger, but it’s not always that easy.

“Every employee has the right not to suffer detriment if they leave or refuse to attend their place of work if they suspect they’re at risk of or exposed to imminent danger, but it’s hard to prove, especially once restrictions have been lifted,” says Carolyn Jones, the director of the Institute of Employment Rights. “If you don’t think the ventilation in your workplace is adequate, you can stay off, but an unauthorised absence can lead to discipline. These rules are allegedly enforceable and attract criminal sanctions if the employer doesn’t do it.” 

Jones points to the fact that these regulations existed during the past 18 months of the pandemic, but the health and safety executive body responsible for them took an enforcement holiday. “There were thousands of outbreaks of COVID [at workplaces] during this period and no visits were made, no prosecutions were taken, investigations that they were obliged to do were outsourced and done over the telephone by a private company.” 

Ultimately, she says, “you can point to rules, but what worker is going to stand up and demand it and face the consequences of their employer?”.

If you’re currently a WFH employee, you may have the right to request flexible working. (Unfortunately, gig workers essentially have next to no rights in this regard.) If you’ve been with the same employer for at least 26 weeks, you have the legal right to request measures like home working, hybrid working and control over working hours, such as flexi-time, compressed hours or term-time hours. 

“As workers return, it’s a chance for employers to make big improvements in flexible working policies,” urges O’Grady. “It’s clear now that home working is possible for lots of people - but not everyone. We need a balanced approach that’s fair to all workers, including those for whom more control over working hours is the priority. Employers should look at options like flexi-time, predictable shift patterns, compressed hours and term-time working.”

However, as Jones points out, it is only a right to request and the result will be based on your manager’s kindness and moral compass as much as anything else. “The employer is within their right to say no and that it doesn’t suit their working practices,” says Jones. “It goes back to the current balance of power in the workspace, where 85 percent of workers have their terms and conditions imposed by their employer rather than negotiated by a union.”

Jones is aware, though, that individual workers who asked for flexible working have been given it. The employer also has to deal with the request in a “reasonable manner” and an employee can appeal the decision of the request if it’s refused. 

If you have a disability and are concerned about your health, it should be easier to obtain flexible working. “Employers should allow disabled employees to have a phased return to work if they want one, and speak to their staff about reasonable adjustments,” says Alison Kerry, head of communications at Scope UK, a disability charity. “Under the Equality Act 2010, disabled people have the right to receive reasonable adjustments from their employer to help them do their job. Not all employer policies include flexible working as a reasonable adjustment, but if you can evidence how flexible working is reasonable and necessary for you to do your job, then the employer has to agree.”

If you’re on furlough at the moment and you want to request flexible working or something similar, Jones advises looking at your furlough agreement to see if it gives you a notice period or any instructions on how your employer can demand you return to work. Any less than 48 hours notice is unreasonable, Jones adds. And since the furlough scheme is being extended to September 2021, there is precedent to argue with your employer to stay off or at least work flexibly until then. 

Some employers are using the pandemic to their advantage and introducing “fire and hire” tactics that involves letting workers go and rehiring them for the same or a similar job under worse circumstances. Jones notes that this even happened within a part of the government, where staff were asked if they wanted to work from home and if they agreed were sent a new contract – one that removed sick pay or reduced holidays.

“People are a bit stuck, especially if they’re carers. You’re not supposed to be able to unilaterally change the terms and conditions of employment without agreement, but that’s the kind of thing that employers are thinking of,” she warns. 

It’s a bit of a miserable picture that puts the power firmly in the hands of bosses, but Jones thinks it’s important to be realistic with people. “I’m not giving you any good news am I?” she laughs wryly. “If you can speak to your employers, try to. Both the employers and the employees know what works best for the workplace and if they’re wanting loyal and productive workers, they’ll adapt their environment to suit both side’s needs. But my one piece of advice would be to join a union.” 

Union reps are trained to understand employment law and health and safety requirements and can help negotiate with your employer on behalf of you and your colleagues. If you’re not a union member but need greater protection at work during the pandemic, the TUC has a tool you can use to which trade union is appropriate for your line of work. Good luck!

@hannahrosewens