Return-to-Office Directives Must Come With Notice

The explosion of people who were allowed to work from home when the pandemic hit was extraordinary. Companies that may have been moving toward allowing remote work but had not quite got there were given a kick in the butt. If they wanted to keep functioning they had to accelerate their plans.

But as the pandemic receded, many employers pulled remote workers back into the office five days a week as restrictions were being lifted.

If you were called back to work at that time there was not much you could say about it. The work-from-home arrangements had clearly been temporary and in response to a unique situation. It was not any kind of permanent change to the terms of one’s employment.

Many people, however, were allowed to continue to work from home, even up to now.

There is a big difference between the entitlements of a person who was only allowed to work from home for nine or 12 months — when the pandemic reigned — to somebody who has now been working from home for five or six years. Certainly by 2023, nobody could argue that the work-from-home arrangement was in any way related to COVID-19.

After such an extended period of time, working from home had become an established part of the employment relationship — and therefore part of the contract of employment.

Contracts, especially in employment situations, do not necessarily have to be in writing. They can be made up by the habits and practices adopted by the employer and the employee over a period of time.

We are starting to hear about employers that are not happy with the remote-work arrangements. For a variety of reasons they have decided that it is not as productive and is detrimental to workplace synergies.

The employer has a right to make changes to the terms of the employment relationship — but if the terms they are changing are significant, they have to give reasonable notice of that change based on an employee’s age, seniority and level of responsibility. That would apply to people who do not have written contracts that legally set out their termination entitlements.

Let us imagine a 20-year employee who has been allowed to work at home for the last six years. It has become a term of their “contract” of employment.

Anyone who has worked remotely knows that it is a very significant change and often felt to be a great advantage. All that commuting time and cost is gone. That, for many people, can mean getting back three hours a day of their life as well as thousands of dollars in commuting costs.

Taking that privilege away is a significant change. Our 20-year employee is in their 40s and not in a management position. If they were terminated they would probably be entitled to somewhere between 16 to 18 months advanced notice or pay in lieu of notice.

If the employer gave them a letter indicating that 17 months from now they had to start working in the office again full time there is nothing they could do about it.

The employer is making a major change to the terms of the employment contract — but they are providing reasonable advance notice of that change given the employee’s age, level of responsibility and seniority. The employee either shows up in the office after the 17 months is over or they could be deemed to have resigned.

If that same employee were only given four months notice of the change, they could take the position that is not sufficient notice and that they have been constructively dismissed. If they look for work and can’t find it they could bring a successful claim for the other 12 to 14 months notice they should have received.

An employee who has worked in the same office who has only three years of service, by contrast, would have no remedy if they were given four months notice of the plan to return to the office. Their circumstances are different.

I am making broad generalizations here. Every case is fact-specific. The 20-year employee who lives a five-minute walk from the office would have a very hard time making the same case as somebody who lives an hour’s drive away.

There is nothing stopping an employer in this situation from giving different amounts of notice of the return to office to different employees based on their seniority.

Companies get themselves in trouble, however, when the executive team suddenly decides they want everyone back in the office in eight weeks.

This article was originally published by The Hamilton Spectator.