Over the past two years, many employees have adapted well to working remotely and learnt to enjoy the benefits that working from home brings.

Employers who appreciated the efforts of their staff to adapt to the pandemic may now find themselves at cross-roads. Many employers have expressed their irritation with the phenomena of WFH, for example, described as “an aberration” by David Solomon of Goldman Sachs. These views are only likely to have been heightened by the latest trend of quiet quitting, where employees choose to do the minimum amount of work that they can get away with in favour of a more fulfilling life outside work. In some quarters this is militating towards a culture of presenteeism, with bosses keen to see bums back on seats in the office. However, after several months of encouraging (and in some cases bribing) a return to the office, many employers’ efforts are being met with stubborn resistance from staff. Employees that have won new freedoms are refusing to budge. They assert that their productivity is heightened by winning back extra hours in their day freed up by the lack of travel. They argue that their mental health is improved by not having to navigate overcrowded trains, buses and tubes and they exhort the ESG benefits of putting less pressure on infrastructure and reducing carbon footprints. Those with caring responsibilities also cite, persuasively, the ability of spending more time with their families and the simplified caring logistics of homeworking.

So, for employers who want to increase office attendance, what can they do? It is likely that individuals’ contracts still have an office base as their primary location. Whilst employees’ may argue they have an implied right to increased flexibility because of their changed working patterns over the last couple of years, such an argument is not likely to succeed given the pandemic’s necessity of working from home, when it was a legal requirement for long periods of time. That said, we are seeing an increase in arguments that working patterns have become contractually binding due to custom and practice and, so far, there has been no reported case on the point.

Employees may seek to make formal applications for flexible working or raise grievances if the direction of travel is back to the office. Whilst the flexible working legislation itself lacks teeth; such an application allied with a grievance can be a first step to an indirect sex discrimination claim. The argument being that the employer has a “provision, criterion or practice” that requires employees to be in the office and this has a disproportionate impact on those with caring responsibilities, primarily women (a fact to which the Courts have given judicial notice in recent cases). To defend such a claim, the employer will need to objectively justify its position. There will be various sound business reasons expounded for requiring some office attendance (e.g. team collaboration, training and supervising juniors, mentoring). However, these are unlikely to cut the mustard in justifying full time office-based attendance and employers seeking to insist on full time attendance will be vulnerable to claims and legal liability.

But it is not just liability and cost that employers risk in refusing to entertain WFH. Organisations that don’t adapt to the changing needs of employees and society (in what remains a strong and buoyant labour market) may find themselves no longer an employer of choice and be regarded as out of touch. In August, it was reported that Apple is requiring staff to attend the office three days a week and at least one senior departure from the company to Google cited the RTO policy as the reason. Staff at Apple have apparently raised a petition arguing that such a practice stifles diversity and wellbeing. Inevitably this has been the subject of unattractive media headlines that Apple’s PR team and C-suite would have certainly preferred to avoid.

Whether “work” loses its status as a noun and returns to being a verb only remains to be seen but the battles around RTO vs WFH seem set to endure for some time.