Hybrid working: General legal advice for Accord members

For members in Lloyds Banking Group

"I understand that the bank has announced that, as from September 2023, your members should spend a minimum of two days per week, or 40% or more of their working time, in an office.

There are likely to be members working from home:

• As their contract of employment provides that they are home workers (and where their contract may have been amended to provide for home working following a flexible working request).
• As a reasonable adjustment because of their disability; and
  
• As they have been since workers were encouraged to work from home because of the pandemic

If any manager seeks to apply this either to those whose contract provides that they work at home or where home working is a reasonable adjustment, then they should be reminded of the basis of the home working of that member and seek Accord support if the manager persists in seeking to require them to spend the minimum period in an office.

It seems to me that the bank can require those working from home because of the pandemic to work in the office a minimum of two days per week (or 40% or more of their working time).

Unless the member is a home worker under their contract, it will provide that their place of work is an office of the bank. Permitting home working because of the pandemic would not have been intended to be a change in the contract of employment as to the place of work, and it would not have changed the contractual terms.

Under a member’s contract of employment, they will be obliged to comply with the reasonable instructions of the bank as the employer. A requirement by the bank to work from the office a minimum of two days a week would not in my view be viewed as an unreasonable instruction, where their contract provides their place of work as the office. Therefore, if that instruction were not complied with, there would highly likely be a breach of contract and this may result in disciplinary consequences.

In my view the bank could have required a full-time member in these circumstances to work from the office five days a week or, if different, on any contractual working pattern determining where they work as between their home and the office. They have not done this and further have given prior notice as to when the requirement will take effect (allowing individual members to make private arrangements to be able to return to the office), and these actions further support the requirement being reasonable.

There will be limited circumstances where this requirement may be challenged:

• As stated above, in the limited cases where members have contractual terms providing that they are home workers.
• As stated above, where home working has been introduced as a reasonable adjustment because of the member’s disability.

• Where since home working commenced the disability of the member is such that working from home should be continued as a reasonable adjustment.

There may be other personal circumstances, including the member’s domestic commitments, which mean the member may need to raise concerns about the instruction. In some cases, this may lead to a request for flexible working being made for an amendment to their contract as to where, as between their home and the office, they work in respect of which advice from Accord may be needed.*

In some limited circumstances, the bank may face a risk of an indirect sex discrimination claim arising from the implications of the requirement to work in the office at least 2 days a week."

Edward Cooper
Head of Employment Department, Slater & Gordon

Updated July 2023

Notes:

* If you fall into this category and your line manager refuses to accept that you cannot change, please send your details with all supporting information to [email protected]. We’ll allocate an officer to advise you on the next steps, which may include support to lodge a statutory flexible working request.