When Working From Home Isn't Working

There has been much chatter about employers mandating staff back to the office. This follows several employers’ decisions to order staff back, especially in the US and more recently in Australia. With more employers likely to follow suit, including here in Australia, the legal issues of ordering staff to return will soon come into sharper focus.

This article explores some of these issues.

Mandating a return to the office

“Can we require staff to return to the office?” I am often asked.

With a grin I reply, “well, you want them back?”  

It’s a valid consideration.

First, many employers are unable to accommodate all workers attending the workplace at the same time. There simply aren’t enough desks.

Second, many employees have become accustomed to working without the distractions that an open plan office space creates.

Finally, with unemployment at 3.7% at the time of writing, there is a real risk that forcing staff back into the office may lead to time consuming and expensive recruitment campaigns in the search for replacement staff who have resigned for a working from home job.

Still, many employers are keen to get staff back into the office. This is usually driven by concerns that working from home has encouraged a culturally disconnected workforce where collaboration opportunities have been stifled and new staff (especially graduates) are unable to receive the quality training they need. In these circumstances, the legal issue of whether an employer can direct staff to return to the office is a particularly pertinent one.

High-level overview

As a general principle, employees must follow lawful and reasonable instructions from their employers. Prima facie, if a direction to attend the workplace (rather than working from home) is lawful and reasonable, then the employee must follow it or risk facing disciplinary action.

While this principle sounds simple enough, its application is far from straightforward. This is because employees have a range of protections available to them. These include a right to request flexible working arrangements, such as working from home under the NES for eligible staff. Employers must also make reasonable adjustments for some employees, which may include working from home. Finally, an employee’s employment contract may also limit an employer’s right to direct an employee back to the workplace. We address some of these issues below.

Lawful and reasonable instructions

The starting place is to consider whether the employer can issue a lawful and reasonable instruction to direct staff back into the office.

The legal tests of whether a direction is lawful and reasonable, whilst well advanced, are not completely settled.

If you are appearing at the Fair Work Commission in response to, for example, an unfair dismissal claim, then a direction to attend the office will probably be lawful and reasonable if it falls within the scope of the employee’s employment and the direction is not unlawful (CFMMEU & Howard v Mt Arthur Coal Pty Ltd [2021] FWCFB 6059). It also helps if the employer’s policy supports the direction.

If, alternatively, you are before the Federal Court or the Federal Circuit and Family Court in response to, say, a general protections claim, then a stricter legal test is likely to apply. In particular, a direction will only be lawful if it is underpinned by a contract of employment, enterprise agreement or statute (Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374). So, if an employment contract says the employee must work at such location(s) the employer directs, then a return to work direction is likely to be lawful. If it’s lawful, then you are well on your way to it also being reasonable.

Even if a direction appears to be lawful and reasonable, other legal protections may apply that effectively curtail or prevent an employer directing staff back to the office. These protections are discussed below.

Right to request work from home (WFH) under the NES

Eligible employees who attend the office under a return to office mandate can subsequently ask to return back to working from home under flexible working requests in the National Employment Standards (NES).

Full-time and part-time employees can request to WFH under the NES if they have worked with the same employer for at least 12 months and they:

• are the parent, or have the responsibility for the care, of a child who is school aged or younger;
• are a carer (under the Carer Recognition Act 2010 (Cth));
• have a disability;
• are 55 or older;
• are pregnant;
• are experiencing family and domestic violence; or  
• provide care or support to an immediate family or household member who is experiencing family or domestic violence.

Casual employees who meet these requirements can also request to work from home if employed for at least 12 months and meet certain requirements about regular and systematic work.

A WFH request can be refused, but the request must be refused on reasonable business grounds. An employer can only refuse a request on reasonable business grounds and if they have:

• discussed the request with the employee and genuinely tried to reach an agreement on alternative arrangements to accommodate the employee’s circumstances; and
• considered the consequences for refusing the employee’s request.

It may be that employers will face an uphill battle demonstrating there are reasonable business grounds for refusing a request to work from home where the employee has been allowed or directed to for two plus years following COVID.

Discrimination law and general protections

Discrimination law is another legal avenue employees can challenge a return to work mandate.

Under both Federal and Victorian discrimination legislation an employer will have acted unlawfully if it imposes a return to office mandate that an employee cannot meet because of a protected attribute. This is called indirect discrimination.

There are many protected attributes. We anticipate the most common attributes that could be relied upon to resist a return to work direction will be disability and family or carer’s responsibilities. This means an employee could say a return to work mandate unlawfully discriminates against him or her because, for example, they have sole responsibility for caring for a child at the end of the school day.

Employees may also be able to bring a successful general protections claim in response to a return to work mandate where they responded by making complaint or inquiry that can be linked to an identifiable right or entitlement, such as the right to request a flexible working arrangement under the NES.

Discrimination under the Equal Opportunity Act 2010 (Vic) (EO Act)

Even before COVID, there have been cases dealing with directions to attend the workplace. The seminal decision of State of Victoria v Schou [2004] VSCA 71 (Schou) concerned a claim of discrimination under the EO Act. Ms Schou was a sub-editor of Hansard at the Department of Victorian Parliamentary Debates and was required to attend Parliament in-person. Ms Schou requested to work from home two days a week on Parliament sitting days whilst her young son recovered from recurrent sickness, which was likely to last around a year. Ms Schou suggested continuing full-time employment from home, but via a modem two days per week, while her son was sick. In August 1996, Ms Schou’s supervisors agreed that the modem proposal was the best course and would be implemented. However, eleven weeks later, the modem had not been installed and she resigned.

The majority in Schou held that, in effect, the requirement to attend Parliament on sitting days was reasonable. Factors such as the work being highly skilled and unique, and the expectation of members to receive an edited proof for checking within two or three hours of making a speech were considered as justifications for the in-person requirement. Given the need for interaction between staff members if the reports were to be produced both accurately and quickly, and that Hansard was a small department with a shortage of those with necessary skills to dictate the conclusion, the requirement to attend on-site during sitting days was not unreasonable.

Would Schou be decided differently now?

The EO Act was amended in 2008 to provide for a new type of discrimination, in the form of a failure by an employer to provide reasonable accommodation for parent or carer responsibilities. It seems likely that a person in a similar position as Ms Schou would have a strong claim under the EO Act today.

In relation to the work arrangements of an employee, an employer must not unreasonably refuse to accommodate the responsibilities that the person has as a parent or carer. The inability of the Department to provide for flexible working arrangements, especially given the prevalence of WFH arrangements in recent times, may be considered an unreasonable refusal to accommodate responsibilities under the current EO Act. This means employers relying on Schou to reject a WFH request do so at their own peril.

Disability and reasonable adjustments

Under the EO Act and Disability Discrimination Act 1992 (Cth) (DDA), an employer must make reasonable adjustments for employees with a disability. Failure to do so may be discrimination under Victorian and federal laws. This means that those with a disability, which is widely defined, are likely to have strengthened grounds for requesting to WFH once a direction to work in the office has been imposed.

No general right to WFH

While employees may have strong rights to request WFH and for employers to accommodate these arrangements in certain circumstances, recent cases suggest there is no general right to work from home.

In Homes v Australian Carers Pty Ltd (No 2) [2023] FedCFamC2G 714, Ms Homes alleged that she was discriminated against, bullied or harassed due to a refusal of her request to WFH, which was determined to be unfounded. It was held that she had neither a legislative or contractual right to work from home. Importantly, the Court held “the cases do not support a general right or entitlement in an employee to provide their services from home at their election”.

Further, the case of Hair v State of Queensland (Queensland Health) [2021] QIRC 422 outlined that whether an employee can demand WFH arrangements depends on the employer’s operational requirements and the practicalities of the flexible working arrangements being requested. Ms Hair was a HR Advisor and submitted a request for flexible working arrangements to work remotely in another State, being New South Wales. The employer denied Ms Hair’s request to work remotely indefinitely. Ms Hair then appealed this decision.

Commissioner Pidgeon held that it was reasonable for the employer to deny Ms Hair’s flexible work request. The employer’s refusal of Ms Hair’s flexible work request was upheld as:

• the employer’s policy guidelines indicated that not all roles or work environments will be suitable for flexible work;
• the role involved duties that were expected to be undertaken in person, such as assisting on interview panels; and
• it was found that other team members would take on an additional workload if Ms Hair was unable to attend a meeting at short-notice.

Commissioner Pidgeon noted that while an employee may prefer to work in a particular way, this ‘needs to be balanced with the operational requirements of the employer’.

Conclusion

The cases suggest there is no general right for employees to work from home at their election. A direction to work in the office is likely to be lawful if the employment contract says the work location is the employer’s office, or the contract gives the employer a right to direct the employee where to work.

Even though employers may be keen to get workers back in the office, there are many things to consider. Employers should turn their minds to individual characteristics of their employees such as parental responsibilities or disability, which may grant them protections or give rise to legal claims, when considering a direction to work in the office.