Are Return to Work Policies Being Used in Place of Termination?

Are Return to Work Policies Being Used in Place of Termination?

Remote work increased dramatically during the COVID-19 pandemic as employers implemented ways to maintain operations while ensuring social distancing. Even after the removal of government restrictions, many employers maintained remote working arrangements, either on a full time or hybrid basis.

Employees who are used to such arrangements may be surprised then when employers declare that they are a temporary measure and that the time is now over. Employers may have many reasons for doing so, including concerns about cooperative working or wanting to make the most of their office space. However, such changes can be upsetting for employee who find the remote work arrangements preferable, especially if they have made other decisions in the last few years based on remote work, such as where they live, and employers are aware of this. Therefore, some employers facing a financial squeeze may try to use a return to office policy as an alternative to mass terminations – a way to remove a chunk of the workforce without paying termination packages by inducing many employees to simply resign instead of return to the office.

Constructive Dismissal

In some cases, the employer’s conduct may amount to a constructive dismissal, which is when the employer breaches a fundamental term of the employment contract which is treated like a termination.

However, for a return to office policy to constitute constructive dismissal, the remote work arrangement would have to be considered a fundamental term of employment. This may be the case if an employee was hired during the pandemic. However, in many cases, especially for employees who were employed prior to COVID, those arrangements may be considered a temporary, situational arrangement. Therefore, the employer would have the right to revert to the original terms of employment, which specified working in the office.

In some cases, the employee may be able to prove that remote working arrangements became a term of their employment. To do so, the employee would have to show that the remote work was adopted on an indefinite basis without being clearly contingent on any one situation. In that case, an employee may be able to claim that forcing them to work only in the office is in fact a constructive dismissal.

How can Whitten and Lublin Help?

Return to office mandates are a complex situation, and the employees’ rights may be influenced by several factors unique to their situation, such as their contract, work history, and specific job circumstances. If you are an employee being instructed to return to in-office work, Whitten & Lublin is here to assist you. Contact us online or by phone at (416) 640-2667.

Author – Aaron Zaltzman