By Niall Pelly - 30 July 2021
While the calendars in empty offices across Ireland still display March 2020, the world has moved on. Nobody talks about “agile working” anymore because it assumes that office working is the default. The talk now is of full remote working or hybrid working, with trips to the office becoming the exception rather than the rule.
In a world where, by necessity, remote working has become the norm, many employees are querying whether they need to fully return to their office once restrictions lift.
What do employees want?
In research conducted by NUIG in April 2021, only 5% of the employees surveyed indicated that they did not wish to work remotely to any extent.
This tallies with our own data, gathered from 1,160 in-house lawyers, C-suite executives and senior HR professionals in the US as part of the Littler® Annual Employer Survey 2021, which found that only 4% of employers believed that most of their employees wanted to return to work fulltime in the office, with 71% believing that their employees favoured a hybrid working model.
What do employers want?
Only 55% of employers surveyed in the Littler® Annual Employer Survey were planning to offer a hybrid working model, while 28% were planning to require that their employees return to the office fulltime.
What this means is that there are a lot of employees who are likely to be disappointed. This provides a glimpse of the tensions to come once offices are fully reopened.
What’s going to happen when offices reopen?
On the current timelines, it’s likely that the right to request remote working will not be introduced until after the current restrictions are lifted. This means that there will be a gap where the law remains unchanged but where employee attitudes to returning to the office have completely altered.
Faced with the prospect of being forced to carry out work in a manner that they have concluded no longer suits them, employees are likely to vote with their feet and resign to seek employment elsewhere. On that basis, even though employers may lawfully require employees to return, it is unrealistic to expect the working environment to immediately snap back to pre-pandemic conditions once offices reopen.
What hybrid arrangements work best?
The simple answer is that no one really knows. This will, in any event, vary from business to business.
When it comes to remote working, there is a scale - with full office working at one end and full remote working at the other. Because of the unprecedented impact of the pandemic, many businesses (and employees) have only experienced life at either end of the scale. However, the difficulty that business face is that all the data suggests that the vast majority of employees don’t want to be confined to either end of the scale.
It may be the case that hybrid working arrangements work best for employees and employer alike. However, it’s also possible that they could result in unfavourable or unforeseen consequences – for example, an office that is principally populated by employees without childcare responsibilities, or a working environment in which “presenteeism” assumes even greater importance than before. However, without actually experiencing it, it is difficult for employers or employees to draw definitive conclusions as to the best way forward.
So what should employers do?
Employers should reflect on the past 15 months and consider the extent to which business needs are dependent on having their employees on-site – for example, have revenue or employee productivity levels measurably declined during lockdown? Without such data, employers may find it difficult to justify forcing employees to return to the office fulltime as soon as restrictions lift.
For now, a refusal in those circumstances will generally only give rise to the risk of resignation, rather than litigation. However, this will change when the legal stakes rise with the introduction of a statutory right to request remote working (see our note here on the introduction of a right to request remote work).
When that right is introduced, employers who can’t point to a specific, legitimate reason why they are refusing the face will potentially face future claims. Relying on a Company policy that requires in-office attendance, or an intangible sense that it’s “better” for employees to work in the office will not suffice.
What about employers who are reluctant to permit remote working?
Although it’s somewhat counterintuitive, it likely makes long term tactical sense for employers who are reluctant to permit wholesale remote or hybrid working to use this intervening period as an informal trial period to assess whether, and how such arrangements could work for their business.
By framing it is a privilege rather than a right, it will be much easier for employers to reinstate full office working if the hybrid working arrangements that are trialled don’t work out. This avoids a scenario where permanent hybrid working arrangements are conceded (or refused outright) without knowing the potential consequences or being able to give evidence backed reasons.
If the arrangements work well, then there is only upside. Even if the arrangements give rise to difficulties, these difficulties can then be pointed to (and relied upon) as justification to refuse future requests. When the right to request remote work is introduced, it’s likely that employers who choose to refuse all remote work requests now will find it harder to defend future claims, as they won’t have this data to fall back on.