Change of contract - WFH to office based

[almosthome]

Reposting from Work in case there are any employment lawyers about.

DH has been told he can no longer work from home. It was agreed with an old boss and we moved out of the area years ago on the basis that he could WFH forever. Unfortunately his contract was never updated to reflect this. The management and HR structure has changed since the original agreement but they have all honoured it. Now he has an ultimatum - come back to the office or resign.

Does the fact that this arrangement has been accepted for years hold any weight against his out of date contract?

Is there any unfair/constructive dismissal here as he is being forced from his job? We are hundreds of miles away so there is no way he can go in.

Is there an official process that these things must follow (like you have consulting periods for redundancy etc?).

We've called round a few solicitors but we can't afford it. He's the main earner, we are already struggling but we will be completely screwed if he's out of a job in a few weeks.

Any advice gratefully received.

It may hold weight and lead to a successful claim for constructive dismissal, but he really needs to consult a lawyer who specialises in employment matters. If you have home insurance, check to see if it includes legal cover. If it does, they may be able to help.

Is he a member of a union? A union or ACAS might be able to help.

Give ACAS a call, see if they can advise. Also, is he part of a union?

If I remember correctly, they need to give him suitable notice based on how long the agreement has been in place but definitely speak with someone at his union

Has he tried doing a flexible work request?

they can't make him resign but they can and will make him redundant. employers do have the right to change terms like this if there is a business need.

it doesn't matter that it's not written into a contract, the fact that it's been the custom and practice for him to wfh for so long means that it will be treated as if it's in the contract, but that in turn is virtually meaningless as any such terms can be changed with reasonable consultation.

the process should be, that they consult, he objects, they give him an ultimatum to sign up to the new terms, he refuses, he gets paid redundancy based on how many years he has worked there.

no legal process can force them to let him keep working from home, but he can certainly assert his right to a redundancy package if the WFH role no longer exists.

No, this is not a redundancy situation legally, although I know many employers would call it a redundancy. Redundancy applies when there is a reduced demand for a particular type of work. In this case, there is no reduced demand. The employer is proposing to end a flexible working agreement. It sounds like they may be putting in place a blanket ban on flexible working arrangements, which is unlawful.

The idea that an employer can change contract terms without agreement provided they hold some sort of consultation is also wrong. If the employer imposes a contract change without the employee's agreement, the employee is likely to have a case for constructive dismissal. In some circumstances, the employee may also have a claim for discrimination. The employer may, of course, attempt to buy off the employee by calling it redundancy and giving them an enhanced redundancy package, but that doesn't take away the employee's right to take the employer to tribunal. The only way the employer can do that is to enter into a settlement agreement, as part of which they would normally pay for the employee to receive legal advice.

I know you have more legal knowledge than me @prh47bridge so I wouldn't presume to argue, but I based this on a real situation where a colleague of mine who wouldn't accept a change of flexibile working arrangements, and it was explained that the "flexible" role was indeed redundant because no one would be recruited into that role working on a flexible basis, and the role which was recruited for was substantially different because it had responsibility elements that couldn't be done from home/had to be done at specific times such that there was a clear business purpose for the role not being available on a flexible basis. the ex colleague was satisfied with the redundancy package and didn't fight it, but it would be interesting to know whether this outcome was legal as it all seemed to make sense at the time.

Employers similarly argue that a part time role is redundant because they now need someone to do the role full time. People often accept this, but the courts have ruled several times that this is wrong. I'm not surprised that employers do this when dealing with staff - redundancy is something people understand and will often accept without question in this kind of situation. I am surprised that some employers still try this argument in tribunal, where failure is guaranteed.

In the case you know of, I'm not going to say anything definitive because I don't know the details, but the basics are that, having agreed to a flexible working arrangement, the employer can only change it with the employee's consent. Absent that consent, the employee may have a claim for breach of contract or constructive dismissal. However, it is not uncommon for employers to buy employees off by calling it redundancy and giving them a decent redundancy package. Most employees will accept this and won't think to check with a lawyer as to whether they might be entitled to more. Even if they do check, they may well decide that taking the money on offer is better than the time and stress of taking it to tribunal.