Sports in the news : Manchester United calls for employees to return to the office or resign

Recent news reports revealed that Manchester United staff were given an ultimatum to either return to the office full-time or resign and accept an early bonus payment. This caught our eye over here at GQ|Littler, as we have seen a growing trend of employers adopting new and varying work-from-home / return-to-office policies, but rarely such decisive action – especially in the sports industry. In this article, we look at the legal background underpinning the WFH vs in-office debate and consider the various advantages and disadvantages that come with different approaches (at both ends of the scale).

Legal right to work from home?

Although there has been much discussion in the press and the pubs (perhaps not, unless you go to the pub with an employment lawyer) about a new legal right to work from home, legally speaking that is not quite correct…

On 6 April 2024, new regulations were introduced to enhance the existing flexible working regime. These changes aim to reduce the burden for employees who want to make a flexible working request and ensure greater transparency and consultation from employers. Now, employees can request flexible working from day one of their employment, without needing 26 weeks of continuous service. A flexible working request may include a request to work from home part or all of the time, but it can also cover other types of requests, such as a request to work part-time, or compressed hours. Employees can also now make two flexible working requests within a 12-month period, and they are no longer required to explain the potential impact of their request on the business. A new statutory ACAS Code of Practice supports this adapted regime. For more information about the new flexible working regime, check out our recent article here.

From the employer’s perspective, the new legislation mandates that employers must address these requests within two months and must consult with the employee before refusing a request. Employers are also under an obligation to deal with any flexible working request “reasonably”, though this is not legally defined. Importantly, employers still have a relatively wide discretion to refuse a flexible working request, so long as they can satisfy one of the eight prescribed grounds for refusal (see para 9 of the ACAS Code). In practice, it is usually quite simple for an employer to identify and satisfy one of these grounds for refusal. If a request is granted, it will usually result in a permanent change to the employee’s terms of employment (unless otherwise specified, or it is subject to a trial period).

So, not a right to work from home – but a right to request to work from home, which can still be denied by the employer.

Contractual right to work from home?

Aside from the statutory regime, employers also need to consider whether their employees have a contractual right to work from home at least some of the time – or, conversely, whether they have the right to insist on employees returning to the office.

Many employees who signed their employment contracts pre-2020 (before Covid transformed our normal ways of working) will have it stated in their employment contract that their “normal place of work” is the office. In those cases, even if the employee has been permitted to work from home for a significant period of time, if there has been no formal contractual change, their employer has a solid contractual basis for requiring them to return to the office full-time. Any refusal by employees to return to the office may be seen as a failure to comply with a reasonable management instruction and would therefore be a disciplinary issue. We imagine that is the case for the majority of Manchester United employees, which is why they felt bold enough to take this approach.

If an employee has previously granted an employee’s flexible working request (to work from home), or if they already have it written in their contract that they are permitted to work from home for a minimum number of days per week, then the employer is more restricted in what it can do. Changing this unilaterally and forcing the employee to come into the office would technically be a breach of contract by the employer, potentially giving the employee the right to resign and claim constructive dismissal. In such cases, employers may need to re-think and take a more conservative approach, possibly consulting with employees about proposed changes to terms (and offering an incentive to do so).

There are nuances to consider – such as whether employees have been permitted to work from home for such a long period of time that it has become an implied contractual term (by custom and practice), or whether employees can reasonably say that their performance has been just as good (if not better) while working from home – but the written employment contract is the starting point.

Why have Manchester United made this decision?

The football club reportedly decided to order its staff to return to the office full-time after the club’s new majority owner, Sir Jim Ratcliffe, reported a 20% decline in email activity on Fridays. This, presumably, was evidence that working from home was contributing to reduced productivity, which needed to change.

While it is not our intention to scrutinise whether Manchester United have made the right decision for their business (each business is unique), it is worth pausing to consider whether the benefits of this hard-line approach outweigh the potential downsides given this is a dilemma we know many other businesses are facing.

Benefits of working from home

Working from home offers several undeniable benefits, with the flexibility to switch between work life and home life, and the decreased commuting time, being two of the most significant. These benefits are particularly valuable for employees with childcare responsibilities (a responsibility which, statistically, falls on women more often than men), as it can give employees more time to take small steps to manage their childcare responsibilities alongside their careers. This flexibility also has the potential to benefit employees with disabilities, who may find it harder to travel to the office or be away from their home environment (depending on their disability). Enforcing a return to the office could have a disproportionately negative impact on these groups of employees, potentially resulting in indirect discrimination claims.

The benefits do of course go beyond just parents and those with disabilities. In a more general sense, entrusting employees with the freedom to choose where they work can result in a greater sense of responsibility, trust and loyalty, as well as a better work-life balance. In turn, these can have positive effects on productivity and performance (as reported in some studies). From a recruitment perspective, having a work from home policy enables employers to cast their net wider and consider applicants from a broader geographic area – this widens the talent pool, and can also be beneficial in terms of social mobility and diversity.

Forbes have reported that 98% of workers in the UK want to work from home “at least some of the time”, so clearly a work from home policy is, at the very least, a way of attracting and retaining employees.

Benefits of returning to the office

Despite the benefits of working from home, it is important to contemplate why Manchester United (and many other employers, in a range of industries) are opting to require employees to return to the office.

Working from home can negatively impact workplace culture, namely communication and togetherness. Employees who work from home permanently or most of the time might report that they feel a lack of “connection” with the business and other colleagues. Building relationships with colleagues and clients can be more difficult, and there's a risk that important information might be missed due to having various, virtual communication channels. There are some things that a Microsoft Teams meeting cannot quite replicate.

One significant disadvantage for employers is the challenge of managing and maintaining accountability. Without a team in one physical space, managers might find it harder to monitor progress and productivity. Employees who are isolated and remote can start to feel 'checked out' – as we are seeing with the rise of the 'quiet quitting' phenomenon.

Even if an employer wants its employees to spend more time in the office, there is a decision to make about how much in-office time is ‘enough’. Do employees need to be in the office five days a week to maximise the benefits of in-office working, or is it sufficient to have a few ‘anchor’ days per week? Interestingly, a recent study of hybrid working by a researcher from Stanford University found that a hybrid work schedule requiring three days in the office per week is a “win-win-win” for employers and employees – highlighting improvements in retention, satisfaction and employee success. Maybe this is the sweet spot?

So, what should Manchester United, and other employers, do?

We could continue writing about the various positive and negatives of hybrid working. The important thing to bear in mind is that each business is different with its own unique workforce and ways of working, and the various benefits and downsides will not necessarily apply equally to all businesses. A work-from-home policy may be more effective and necessary in some industries than others. Businesses that have the ability to assess workers’ productivity wherever they are working (such as law firms with time recording software) might find it simpler to facilitate homeworking, than a business where productivity is not as easy to track or measure.

In the case of Manchester United, we can’t ignore the fact that this is a business whose main line of activity (elite-level professional football) is predicated on a high-performance culture with traditional, old-fashioned values. Discipline, hard work, reliability – all demonstrated in-person, on the training ground or on the pitch. One can imagine how a new majority owner, with his own sporting background, might aim to replicate this high-performance culture among the rest of its non-footballing staff.