"But I want to keep working from home!" – returning to the office after COVID-19
A common query at the moment is whether employers can insist employees return to the office after an extended period of working from home, due to COVID-19 restrictions.
Many employees (especially office workers) have established their ability to work quite productively from home and are now putting it to their employers that they should be able to continue to work from home. Undoubtedly, there have been many benefits to employees in working from home, and having become accustomed to those benefits, employees may be reluctant to come back in.
On the other side of the coin, employers are in many cases keen to get employees back to the office. This can be for many reasons:
- maintaining a good workplace culture;
- team building;
- productivity; or
- simply to get everyone off Zoom and back to interacting face-to-face.
Can employees refuse the return-to-office call?
The simple answer to whether employers can require employees to return largely comes down to the common law requirement for employees to follow the reasonable and lawful directions of their employer. Put simply, as long as the employer's direction to return to the office is both reasonable and lawful, the employee must comply.
What can employers do to bring people back to work?
Employees may try to say that, having regard to the fact they have been successfully working from home for so long, along with a perceived risk of COVID-19 associated with traveling to the office on public transport, it is not reasonable to direct that they return to the office. In these circumstances, it can be useful to refer back to written employment contracts – in general, an employment contract will contain a provision specifying the usual place of work. In these circumstances, the employee has a contractual obligation (in addition to the obligation to comply with a reasonable and lawful direction) to work at the location specified.
Is there any flexibility?
Individual cases may vary (e.g. in circumstances of a valid request for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth)), but provided the employer has a COVID safe plan for the workplace and it is not otherwise risky for employees to travel to and attend at work, an employer would be on quite solid ground in directing an employee to come back to the office – and if the employee failed to do so, it would be open to the employer to take disciplinary action.
If you have queries about any of the matters raised above, or would like assistance in getting your employees back to the office, please do not hesitate to contact James Francis, Senior Associate and Head of Employment Law on 03 9629 7411.