The Manchester United ‘return to office’ mandate is generating headlines.  In brief, employees have been told to return to full time in-person work, or resign.  Those that choose to go rather than go back to commuting will receive their annual bonus in return. 

Whilst we can debate the decision and its rationale, sitting behind this fairly aggressive stance is a whole lot of potential legal questions.  So can employers demand that remote and hybrid employees RTO?

The answer, as is so often the case, is ‘it depends’.

Let’s start with the contractual position.

Many employees who have undertaken remote or hybrid work since the pandemic have done so informally.  I have come across few organisations that have formally changed terms and conditions of employment, with most operating informal arrangements or HR policies.  In such cases, if an employee’s contractual location is the office / their employer’s premises, arguably the employer is simply asking people to fulfil their contractual obligations by attending their workplace.   The answer in this case therefore might well be – yes they can. 

A different situation arises if the employee has their home as their contractual location.  In this case, a mandate to attend a workplace five days per week is a unilateral variation to terms and conditions of employment– generally not permitted unless there is a contractual provision to allow for it, or the employer wishes to go down the route of termination and re-engagement (fire and re-hire as it is often known.)  The latter brings with it its own legal risks – there is a new code of practice on this area of law from July and I am not convinced it will meet the threshold (this would be a question for a Tribunal and would only apply after the relevant date).  Threats of dismissal are generally not considered a good thing in this context. 

The employee in the second example is in a much better position legally.  They can refuse to accept the variation and allow the employer to take the next steps – more on that in a moment. 

If an employee is asked to return to their contractual place of work when they have been working in a hybrid way, this does not entirely leave them without legal recourse.  An argument could made that this is indirect discrimination.  Indirect discrimination occurs when there is a policy that applies in to everybody but disadvantages a group of people who share a protected characteristic. For example, a disabled employee could seek to argue that they are disadvantaged by a full time RTO mandate as it more difficult for them to comply due to their disability.   However….. indirect discrimination can be justified (therefore it is not unlawful) if it is found to be a proportionate means of achieving a legitimate aim.   Only an Employment Tribunal, after hearing all of the evidence, could determine if such a policy met this threshold.  Employees do not have to resign to bring such as claim and they can be entitled to unlimited compensation plus compensation for injury to feelings.  This however does not provide protection for all employees – only those with a protected characteristic under the Equality Act. 

So far, so complicated.

What then, of the ‘resign or else’ mandate?  Simply, you cannot compel an employee to resign.  Telling someone that they must resign could well be effectively be seen as a dismissal in its own right.  An employee could potentially resign but then argue at Tribunal that the mandate was a constructive dismissal, for example, as a result of a breach of mutual trust and confidence. 

The question then arises – if any employee does not resign but also does not comply – what will the organisation do?  The options would be to either go down a disciplinary route and issue warnings, do nothing and let it go, or dismiss the individual for something like a refusal to obey a legitimate management request, or undertake what is known as a ‘some other substantial reason’ dismissal.  Once again, only an Employment Tribunal could determine whether such a dismissal would be fair or not after hearing all of the facts. 

Practical issues arise as well as legal ones.  Bringing a case in the Employment Tribunal is stressful and time consuming.  Getting a hearing could take many months due to current delays.  Bringing a claim is always a risk as there are no guarantees. 

I suspect that any employee who wishes to take their bonus and leave will be required to sign a settlement agreement in return.  I similarly suspect that none of this particular circumstances will find its way into the Employment Tribunal system as it will all be dealt with by way of settlement agreements.  Some more case law in this area would actually be extremely helpful for employers – it will certainly come in time.

PS – there is no image accompanying this blog post as every single image returned has a gavel in it.