Return to Work, Remote

[Aleesha Van Damme]

#96463

Forum: Community

Hi there,

This is a hugely popular topic this year regarding calling staff back into the office from a remote work arrangement.

I have two scenarios.

1. The employee does not have anything noted in their contract about remote work; however, in an email, the employer confirms it is a remote work arrangement before signing the employment agreement. She has been working remotely for several years.

2 Two other employees have no mention of remote work in their contracts and no documented confirmation of a remote work arrangement. They have been working remotely since 2021.

Certainly, this is now an implied term of their employment agreement. For context, our Employment Agreements do not include an “employer’s right to return to work” clause.

Is there any legally sound way to move from a remote position to an in-office one at this stage? Or has this become a permanent change in their term of agreement and potentially require new consideration/compensation to change?

Thank you.

[Haley O’Halloran]

#96466

This is a highly nuanced situation, especially given the current trends and legal challenges surrounding remote work. Here’s a breakdown of the potential issues and considerations in each of the scenarios you’ve outlined, as well as some general advice:

Scenario 1: Employee with Confirmation of Remote Work in Email
Implied Contract Terms: While the employee does not have a written clause in the contract about remote work, the fact that the employer has confirmed the remote work arrangement by email prior to the signing of the employment agreement can create an implied term. In other words, despite the absence of a formal clause in the contract, the employer’s confirmation can be interpreted as an offer that became part of the employment agreement.
Legal Implication: This confirmation likely creates an implied contract term that the employee will work remotely. In the absence of an “employer’s right to return to work” clause, this remote arrangement could be seen as a mutually agreed-upon condition of employment.
Moving Back to Office: If the employer wishes to revert to an office-based arrangement, the change would generally need to be agreed upon by the employee. Depending on local labor laws, a significant change to the terms of employment (such as moving from a remote work situation to an office-based one) could require the employee’s consent or, in some cases, additional compensation. A unilateral change may lead to a potential claim of breach of contract or constructive dismissal.
Potential Consideration/Compensation: Yes, there could be a need for additional consideration or compensation if the employee objects to the change, as the change in work location could significantly affect their daily routine, commuting time, and overall work-life balance.

Scenario 2: Employees with No Mention of Remote Work
Implied Terms: In this case, there is no documented confirmation of the remote work arrangement, which means the terms of the contract would not explicitly include remote work as part of the employment terms. However, these employees have been working remotely since 2021, which may imply that the remote arrangement has become a “customary practice” or an implied term due to the duration and consistency of the arrangement.
Legal Implication: Even without a formal agreement or mention in the contract, the employee’s longstanding remote work may create an implied term of remote work through estoppel or based on the assumption that the employer has effectively allowed the arrangement for a long period of time.
Moving Back to Office: In this situation, the employer may have more leeway to change the terms, but they still would need to handle it carefully. A change to in-office work would need to be reasonable and may require consultation or a phase-in period.
Potential Consideration/Compensation: Similar to Scenario 1, this could also require negotiation. Depending on the local employment law, forcing a return to the office could be seen as a significant change to the terms of employment, potentially leading to claims for compensation if the employees are unwilling to accept the change. In some jurisdictions, the employer may be required to provide a reasonable notice period or offer compensation for the change.

General Considerations
Employer’s Right to Change Work Conditions: If the employment contracts don’t contain a specific “right to change work location” clause, it can complicate the employer’s ability to require employees to return to the office without their consent. Without a contractual right, the employer must rely on implied terms, local labor laws, and the principle of reasonable notice.
Reasonableness: Even if employees have been working remotely for a significant period of time, a sudden change may be deemed unreasonable if not handled properly. Local labor laws often require that employers take care when changing work conditions that affect an employee’s routine and lifestyle.
Communication: Transparency and effective communication will be critical. Before implementing any changes, it is advisable to engage in a clear, open discussion with employees about the rationale behind the change and offer reasonable accommodations or incentives (like compensation for travel time, flexible office days, etc.).

Steps the Employer Might Take:
Consultation: Schedule one-on-one meetings to explain the intention to return to the office, gather feedback, and allow employees to express concerns.
Consider Notice Periods: If the employee has been working remotely for several years, a short notice period for a change may not be reasonable. Offering a transition period might smoothen the change.
Compensation or Incentives: Offer additional compensation, relocation assistance, or other incentives to offset the inconvenience of commuting or changing work conditions.
Updated Employment Contracts: If the return to office is enforced, it may be a good idea to update the employment contract to reflect the new work arrangement (or explicitly remove any implied remote work terms) and ensure all parties are on the same page.

For Scenario 1 (with the email confirmation of remote work), it is likely that the remote work arrangement has become an implied term of the employment contract, and a move back to the office may require the employee’s consent and possibly compensation.

For Scenario 2 (employees without any formal documentation), the remote work arrangement may be considered an implied term based on practice, but the employer may have more flexibility to return to the office, albeit still requiring reasonable notice or consultation.

In either case, it is crucial to ensure that any change is fair, reasonable, and legally compliant to avoid disputes or potential claims. It may also be beneficial to consult with an employment law specialist or lawyer familiar with the relevant jurisdiction to ensure that the process is legally sound. Hope this helps!

-HRInsider Staff

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