Not sure what to do new office attendance policy

[sunflower122]

I took on a new role around two years ago. The company wanted me to be based in a particular office further north (about a three hour each way commute away.)

I said that was fine but I could only do that commute once a week. This was agreed in writing. I genuinely would not have taken the job if they had not agreed to this - my old job was fine!

The company have now announced a mandatory three day a week in the office policy.

I genuinely cannot do this with a six hour commute and it wasn't the basis on which I accepted the role.

Do I need to leave pretty much immediately?

Must admit I hadnt come across this in all the contracts I've ever reviewed! Looks like it's maybe more common in commercial law?

The 'reasonableness test' was interesting and I'd wondered if there was something like this underpinning these clauses.

surely in EL for some roles (so those where it wouldn't be reasonably expected for someone to understand it's implications, so they aren't in procurement etc.) it would be unlikely to be considered a fair term as the employee would have had full trust in the email 'addendum'?

Would the onus be on the employee to prove they didn't understand it's meaning?

If this is the case, OP, I'd maybe hold off a bit on any conversations. Wait till January and then say you assume it doesn't relate to you. Buy yourself more time if they only START looking into how to get rid of you in January.

No, I write it into every employment contract I design, and it's always recommended by employment lawyers. And, I've had to rely on it a few times as well so it is very worth having (from an employer perspective).

Of course it is a fair term. Saying "this is the contract" cannot be deemed unfair, surely?

I've no idea how an employee could suggest that they didn't understand it. But, in my experience, employees claim not to understand all sorts of things when it suits them. Rarely gets them far in tribunal though. If they don't understand they can ask before they sign it.

@Megifer My current arrangements are in my contract, at my previous employer it was in an addendum type thing to my contract that described my place of work, and how many days working from home.

It would be unfair if they were assured, in writing separately, that some other term or benefit was included but that wasn't reflected in the contract, which then explicitly excluded all other offerings. That sounds deceptive to me

There is the legal aspect of things of course, but there is also the longer term future you need to think about. What situation do you want to work towards in 2 or 3 years from now?

In my area (sw development) it's very easy for an employer to freeze out someone over a period of time, no unions here, no public service benefits, etc.

I'm in a similar situation, being expected to attend office going forward, but it's not possible for family reasons. I'm be easily able to get another job, just not with the current salary and benefits where I'm located. Not a nice place to be be! But I'm very used to turmoil in tech!!

Then people need to check that all the terms they have agreed are in the contract. How can it be "deceptive" if it is literally written down? Don't people read their contracts?

I think that those arguing about the entire agreement clause are missing a crucial point.

OP says the contract just says “hybrid”. It does not contain any detail about the working pattern.

Therefore it is impossible for that contract to contain the entire contractual relationship between OP and her employer about working location because it was obviously intended that the detail would be agreed between her and her managers in a separate exchange.

OP’s separate agreement does not contradict any statement in the contract such as “work location is [office].” It fills in a gap that was left in the contract, on a subject that obviously could not be left unclear.

I doubt very much (unless expressly specified in the contract that all arrangements as to working location are non-binding on the employer and can be changed without notice or consultation) that they could argue that the agreement about working hours was completely informal when viewed in the context of OP being clear that she lived 3 hours away and would not accept the job on any other basis. She entered into the contract in reliance on their assurance that she could only attend 1 day a week.

I agree that she may end up being made redundant and compensated accordingly, but I don’t think that the employer can just impose a new working arrangement on her.

You’d be surprised how few people read any kind of contracts, then they cry foul when they’re caught out by small print or not following stated procedure etc. Not just employment contracts but gym memberships, car leases, bank loans, utility contracts, etc. I blame “comprehension” not being taught on real life documents in schools - it’s always fiction that’s taught these days.

I thought that agreements / practice became part of the contract?

but that the employer can require a change, with adequate notice.

I wrote to my new MP last month suggesting that this area of law needs to be better defined, especially on what is custom and practice for working from home being changed at short notice.

Genuinely have never come across that in a standard employment contract. Put a post on FB last night in a HR group im still in and only a handful there had come across it too!

There is something rattling round in my head about there can be a question over whether a term is potentially unfair if the person cant be reasonably expected to understand its effect so e.g. someone getting their first job trusting that an additional email from the employer is an agreed term so might not even think to query it, but all I could find backing that up was a LI post and the UCTA that some EL sites mention,but then you find out the UCTA doesn't apply to Emp contracts.....or does it? 😬

And ain't that the truth about employees declaring they didn't understand something 🙄 I did tend to believe that when it came to younger employees, not so much the higher level ones who surely know employers do try to pull fast ones themselves sometimes so you'd expect them to fine tooth comb a contract.

Probably not relevant to op so sorry for the derail op. Just found all that quite an interesting rabbit hole!

taxguru
Reading is definitely a skill that a lot of people don't take seriously. However don't blame us in schools we teach the GCSE curriculum but to be fair science and maths and English language and tech subjects and geography and chunks of history are all about non fiction.
I'm a big reader of fiction and I have learnt a lot about contracts from my reading and I always read documents. There are entire victorian novels about never signing stuff unless your lawyer reads it first!

Employment contracts (statements of main terms) will have a clause to say that the employment contract prevails if there are other conflicting clauses in a non contractual handbook for instance. That's usual. Having a clause stating everything is in the written statement of main terms seems unlikely to stand up to scrutiny. Employees have got a right to rely on other contractual commitments made and custom and practice.

As for OP - yes they can change the set up with due consultation and notice. If OP cannot comply it would be a dismissal (can possibly argue redundancy but more likely not). It may be fair if the business case for wanting OP in the office 3 days per week is strong enough. They certainly cannot push it through without consultation (or rather it would then be unfair/open the challenge) and they cannot put a blanket ban on FWR though it's not relevant here as OP should rely on the email + custom and practice. It's obviously in her contract generally to mostly WFH. They need to consult over it changing.

As for the PP with the team of employment lawyers - i assume you work for one of the large HR consultancy service. It is unfortunate that you do not have a team/management structure that is sufficiently competent for the set up to be successfully managed remotely/with various working patterns. 3 days a week in the office for everyone seems unnecessary with a team of professionals in employment law. I certainly wouldn't be happy with that set up. You may be able to backfill for those who leave but you will not backfill with the most competent in that field.

Two conflicting statements are "literally written down". We don't know in which order they were written down and given to the OP. At the very least this is ambiguous and, if done deliberately would definitely be deceptive

I wasn't talking about the OP, I was talking about contract clauses in general. I have no idea if her contract has this clause, I was just explaining how this clause works to someone who thought it didn't exist (it does).

It's irrelevant which order it is written in, a whole of contract clause overrides other things that may have been said or written. So if you agree something, get it written into your contract. Then you know it's contractual and there's no ambiguity.

Btw, it's never "done deliberately", in most organisations the contract is standard for everyone. Noone writes in a new whole of contract clause to do someone out of something that has been agreed. It's more likely that the people preparing the contract have not been told that other agreements are in place. So, read the contract!

As for the PP with the team of employment lawyers - i assume you work for one of the large HR consultancy service. It is unfortunate that you do not have a team/management structure that is sufficiently competent for the set up to be successfully managed remotely/with various working patterns. 3 days a week in the office for everyone seems unnecessary with a team of professionals in employment law. I certainly wouldn't be happy with that set up. You may be able to backfill for those who leave but you will not backfill with the most competent in that field

Me?
No.
We're not an HR consultancy nor a "team of employment lawyers" (we just refer to external lawyers when we need to).
And we're quite happy with how our hybrid working is going thanks. We've been really clear with everyone and it's working fine.

We have had a few leavers who have mentioned it, but actually our turnover hasn't increased and most people still leave for more money, the hybrid working has not been the primary reason. We don't struggle to recruit either (not sure what you mean by "most competent in that field" when you don't know what field I work in)
We're in two days a week, so if you are referring to me here you've just made up a whole nonsense scenario in your head.
Btw, we didn't refer to our lawyers on hybrid working - we didn't need to.

@Megifer

UCTA does not apply to employment contracts, no. It's consumer law.

No I was referring to MillicentMama who has inherited a team of employment lawyers and now going through a process to bring them back to the office 3 days per week :)

Custom and practice cannot usually override a written contract term though. It can fill a void, but not override a term. But even then, with notice terms can be changed.

Also, it has to apply to the whole workforce, not a small group or individual. And you have to be able to show the employer meant it to be permanent. Home working due to COVID was most decidedly never intended to be permanent. Even a few years later an employer can rely on that being a temporary adjustment. Especially if they have emails or other comms from the start saying it is temporary (which they probably will).

It's one of the most misunderstood bits of employment law yet the most widely quoted by people for some reason.

No, I'm not really surprised. Just wishing people did read them.

Are you in a union? I think you are in a strong position but it doesn't mean they will be reasonable. Contact ACAS for advice if not in a union.

A reasonable employer would accept that your terms and conditions are different but the question is - are they reasonable

No, UCTA is for general civil contractual liability. You are getting mixed up with the Consumer Rights Act 2015 which took some of the provisions in UCTA that related to consumers and rewrote them, separating the two bits of legislation into consumer and non-consumer categories.

I was getting very mixed up 😩 weirdly when you google "employment contracts", unfair terms, whole of contract clause" or similar for me it was bringing back lots of sites referring to the UCTA and admittedly I only scanned through them. A tribunal case even came up about a bonus payment 🫠

Sorry will stop derailing ops thread with this, just found it interesting, appreciate the replies about it ☺️

Depending on how corporate they are and how you are rated, they may be flexible. If they advertised your role in the current office location, do you think they could recruit a candidate as good or better than you for the same salary? If you are a high performer with niche skills, are flexible and a team player and perhaps are being paid at the lower end of the scale, you might have some respite before they go in hard.