Employer trying to rescind work from home after trial

Before returning form maternity leave I submitted a flexible working request to do compressed hours from home. A trial took place which finished earlier this year, but I haven’t had anything in writing to say what the outcome was.  However, I have been working this way for 18 months now.

The company has recently decided that workers need to be in the office two days a week. My boss has been advised by HR that because they didn’t confirm the trial was a success in writing, the company can now rescind my WFH arrangement so that I have to come into the office two days a week, although I can still work compressed hours. Shouldn’t my arrangement now be part of my terms and conditions?

Office desk with note saying "flexible working"

 

As part of your flexible working request, you asked for two things: to work from home permanently and on compressed hours and the employer’s letter confirmed this would be trialled over a six-month period. It is unclear whether the letter stated that it would only become a permanent arrangement if it was confirmed after the six-month trial period, or if the letter was silent about this.

Ordinarily, the outcome of a trial such as this would be communicated to you either verbally or in writing so that there is a record as to whether the new arrangements are to be permanent or not. Your employer is now saying that they did not confirm this and so it is not a permanent change, but at the same time are saying that the compressed hours was agreed but not the working from home.

Perhaps they are saying that all employees were permitted to work from home and so the request was not necessary as it was already in place, but now they want to change that and have everyone in two days a week?

Contract terms can be varied in a number of ways, either explicitly verbally or in writing or by way of custom and practice. The latter is called an implied term. Other than in particular situations, an implied term cannot override an express term, for example, a clause in an employment contract.

In this case, a letter has never been issued confirming the working arrangement is permanent so your employer could argue that, the express terms in your original employment contract still apply and override any custom and practice argument, but given they have accepted the compressed hours is a permanent change, this will be more difficult as the employer’s conduct over the last 18 months strongly indicates it intended to, and accepted being bound by the change to working from home permanent on compressed hours. Indeed, its recent correspondence with you indicates that it accepts there has been a change at least to your working hours and they cannot pick and choose between which parts of the flexible working request are now permanent and which are not. In this instance, it is arguable that even without the letter there has been a change to your contract terms by virtue of the employer’s behaviour, its failure to raise any issues or halt the working arrangements or even to confirm that the trial was ongoing.

The altered working arrangements are well known to you, your manager and colleagues, and there is an expectation that it would continue indefinitely.  You should check if there are any documents in which the organisation or your manager have accepted the arrangements in writing for example, in emails confirming your working hours and workplace. These could help you argue that there has been an explicit agreement to change your terms, upon which you can rely.

However, even if they accept there has been a permanent change to your contract, your employer can still ask you to vary this and attend the office two days per week. That would be a contractual change and if you are unwilling or unable to agree to that change, the employer should consult with you about the proposal. If the change is not agreed by you, that consultation could result in dismissal and an offer to re-employ you in the same role, albeit working two days per week from the office. That could be a potentially fair dismissal.

I recommend that you check the letter you were sent about the trial period and any other communications with the organisation around it, particularly around the end of the trial period and since then. If you are satisfied there is nothing which states that the trial period must be agreed in writing, then you could explain the parties varied your contractual working arrangements by virtue of the letter and custom and practice.  As they require everyone to work in the office you could propose an alternative, whereby you work one day per week in the office. If that is not agreeable or they enforce the change without bringing your contract to an end and offering you a new one, you could potentially claim breach of contract and (if you have been employed for two years or more) constructive dismissal, or work under protest for a limited period of time while looking for another role. If the negotiations do not go well, I suggest you consider raising a grievance about your treatment and seek legal advice.

*Maria Hoeritzauer is a Partner at Crossland Employment Solicitors in Abingdon. 



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