By accelerating the trend of working remotely, the pandemic changed the way we view our workplaces. A 2022 Statistics Canada labour force survey found that over a quarter of respondents had worked from home throughout the pandemic. Many preferred to keep working remotely rather than driving into the office everyday. As health restrictions life and life is getting back to normal many employers are trying to get their staff back to the office.
Can an employer compel a reluctant employee to come back to work in the office?
Peter McSherry, an employment lawyer in Guelph says it depends. “It will depend on if a court decides that working from home is a fundamental term of your employment contract. If you’re somebody who lives an hour or two away from the office or someone who has mobility issues, working from home may be seen as a fundamental term of your employment contract based on lifestyle. However, if an employee lives close to the office, a court may decide working remotely is not a fundamental term of their employment.”
What does your employment contract say?
Generally, as part of your employment contract, employers have the right to determine where you work. However, this does not mean an employer can make significant changes without your consent to where you are working in all cases. A written employment contract will provide an employee with the appropriate context about where they will be working.
Since the pandemic, employers are starting to specify where an employee will work by designating the location of their office. McSherry says, “I’ve seen employment contracts that state the employer is entitled to move the work location within a 50km radius. Employers are starting to be specific about work locations and in greater detail.”
Some employers may have put the policies in writing and signed by employees and others may not. McSherry points out, “Just because your employer has made an agreement with you, and whether it’s in writing or not, they don’t have to stick with it forever. They’re entitled to change the terms and conditions of your employment, but if it’s considered a fundamental term of your employment, they would need to give you the same amount of notice as they would if they were to terminate your employment.”
For instance, an employer could say two years from now, everyone must be back working in the office, 5 days a week, no questions asked. The only exemptions would be people who are protected by the human rights code and need an accommodation.
McSherry says, “There would be little anybody could do to dispute that. They could continue with the current arrangement and then at the end of two years, everybody would have to be back in the office. Employers have the flexibility to modify an employee’s job terms to meet business needs. The legality of changing an employee’s work location depends on how crucial it is to their work.
Could it be Constructive Dismissal?
If you do not consent to your employer significantly changing your work location, it may result in a constructive dismissal. If working from home is a fundamental term of your employment contract it will be driven by the facts. McSherry says, “If you’ve been working from home for a long period of time, and the requirement to come into the office is onerous, then it may well be viewed as a fundamental term of your employment contract that you work from home.”
However, if you’ve only been working from home a short period of time and it’s not difficult to come into the office, a court may find that it’s not a fundamental term of your employment contract. McSherry stresses, “When an employee is suing for constructive dismissal, they have the burden of proving that the term the employer has changed is a fundamental term. If it isn’t a fundamental term, then the employee is out of luck.”
The question that needs to be answered is why was the employee working from home? Were they working from home because of the pandemic and then expected to return to the office at some point? That might not be considered a fundamental term.
An employee with small children may be able to argue successfully that commuting to downtown Toronto is a heavy burden and that they need to work from home. In that case, it would be a fundamental term. McSherry points out, “Employees must show that returning to the office is a significant impairment, not just an inconvenience.”
Moved a long distance from the office
What if an employee purchased a home quite a distance from the office and did not talk to their employer before signing the purchase agreement?
McSherry says, “I think in that case a court would say you took the risk and that is the consequence. Sorry, you’re out of luck. However, if the employee discussed the desire to purchase with their boss and were told that it’s okay, then I think the employee could rely on a doctrine called Detrimental Reliance. This means that the employee detrimentally relied on the employer’s promise that they could continue to work from home. McSherry adds, “That would prove that it was a fundamental term and I think that the employee would be entitled to a longer period of time before the employer could remove that term.”
Contact an employment lawyer
If you’re being told by your boss that you need to come back to the office, but you would rather continue working from home, you might want to speak to an employment lawyer to find out what your rights are.
Peter McSherry says, “If you believe your matter could be constructive dismissal, remember that the burden of proof is on the employee. The employee would have to quit their job and sue their employer. So, I would recommend that an employee get legal advice prior to quitting your job because you could find yourself being unemployed potentially for a long period of time, while getting no compensation from your employer.”
If you are dealing with an issue related to returning to in-person work at the office, Peter McSherry can help you understand your entitlements, obligations, and legal risks. Contact Peter at (519) 821-5465 or online here.