A few weeks ago, the world’s richest man and founder of Tesla, Elon Musk, told his employees that they must return to working in the office for a minimum of 40 hours a week. He claimed that remote work was not as effective or productive as working from a physical location.

Unsurprisingly, Musk faced a fair amount of criticism for these comments. His views were labelled as “antiquated”, and one expert said they “put him in a small minority of business owners who are betting the future of their organisations on the organisation design principles of the past”.

Musk’s comments also appear to contradict what we have learned about remote working over the past two and a half years of the pandemic, and in particular, that productivity does not generally suffer. 

However, Musk is not alone in preferring employees to be “at work”, and as we move towards living with Covid-19, more and more employers are directing that employees return to the workplace.  There has also been increasing pressure on businesses from the retail and hospitality sectors to encourage employees to return to offices and come back into the cities.

This has been a cause of tension for many employees who have come to enjoy the change of lifestyle and additional freedoms that working from home gives them.  So, what happens if one of these employees decides to dig their heels in and refuses to return to the office?

The starting point is the employee’s employment agreement.  All individual employment agreements must contain an indication of where the work is to be performed.  Prior to the start of the pandemic, most employment agreements referred to a physical office or workplace as the place of work, and few listed working from home as an option. In this situation, employers are contractually entitled to require employees to work from the office.

Conversely, if the employment agreement says that the work location is at the employee’s home, an employer cannot direct them to work somewhere else.  In other words, both parties would need to agree to change this arrangement.

It may become more complicated where the employment agreement is unclear or an employee claims that a custom and practice of them working from home has been established.  This could well be a legitimate argument where an employee has worked from home since the start of the pandemic, although a custom and practice cannot override an express term of an agreement.

Leaving strict legal arguments to one side, employers should avoid simply ordering their employees back to work without regard to other circumstances. The world has changed and the reality is that any employer who wants to recruit and retain good staff will now need to take a more flexible approach to this issue.

For many employees the thought of potentially lengthy commutes, overcrowded public transport, and the possibility of contracting Covid-19 in the workplace, will make them nervous about leaving the safety of their home for up to five days a week. Workers or those with family members who are immunocompromised may be more likely to be hesitant.

Other employees may simply prefer working from home for reasons of convenience and flexibility

In either case, a fair and reasonable employer will consult with the employee about their preferences and acknowledge any concerns they have.  Employers should also be open to considering alternative arrangements to accommodate any particular issues that the employee has. 

However, subject to any specific contractual terms, and having consulted with the employee, an employer is ultimately entitled to require an employee to be “at work”.  To this extent working from home is not a right. This also means that an employer can revoke the “privilege” of an employee working from home if it becomes clear that the arrangement is not working effectively and productivity is suffering.

This will continue to be a contentious issue for many over next few years as expectations and working practices continue to evolve.  In part this is an intergenerational issue with most business owners being of an age where working from home was not an option, and employees were required to be “seen to be busy”. However, this approach will not be sustainable with younger workers now expecting flexibility and making work choices accordingly. 

There are issues of trust and confidence tied up in this too, but employers who don’t adapt will likely fall behind. In the meantime, adopting the Musk directive approach is not recommended.