This month’s Employment Law Bulletin will be focusing on a topic that is relevant to all. We will be discussing the great return to office recall and whether this is a constructive dismissal time bomb.
For a brief time, the commute was quiet. The phrase ‘you’re on mute’ became a household anthem in the UK. Fast forward to 2026 and the tide has officially turned. Employers are summoning staff back to the office with newfound confidence. But the legal twist is that the workplace has changed and so has the law.
News 📰
Triggering Events
Theoretically, it sounds quite simple. An employer directs employees to return to the office. Employees comply. However, in practice, it is more than this.
Where employees have been working remotely or hybrid for a sustained period of time, a sudden shift back to office-based working can trigger the following:
- Breach of the implied term of trust and confidence;
- Constructive dismissal risks; and
- Indirect discrimination claims, particularly for carers, disabled employees, or those with childcare responsibilities.
The legal danger lies not in asking employees to return, but in the ‘how’, ‘when’, and ‘why’ that request is being made. A blanket return to the office with no further discussion has become outdated, obsolete and a potential cause for litigation.
The New Flexible Working Regime (April 2024)
Employers who still think flexible working is a perk have to update their line of thinking and reasoning. Since April 2024:
- Employees have a day-one right to request flexible working
- They can make two requests per year instead of one
- Employers must respond within two months, and
- Crucially, employers must consult before rejecting a request.
The Employment Rights Act 2025
The incoming reforms, phased throughout 2026-2027, introduce a deceptively simple concept: Reasonableness.
Employers will only be able to refuse flexible working requests if it is reasonable to do so. They must justify their refusal in writing, explaining why it meets one or more of the eight statutory grounds. Tribunals will scrutinise not just the reason but whether it was reasonable in context.
This is a significant shift as employers could previously just rely on one of the statutory reasons. However, this will no longer be enough, and employers will be required to show how they got to their decision.
The Elephant in the Room
An employee who is successfully working remotely but is required to return to the office full-time, without being provided with a meaningful consultation, may argue that the employer has fundamentally changed the terms of their employment, which may result in a constructive unfair dismissal claim. While each case will turn on its facts, tribunals are increasingly alive to:
- The normalisation of hybrid working
- The impact on work-life balance, and
- Whether the employer has genuinely considered alternatives.
Key Scenarios Triggering Constructive Dismissal:
- Unilateral Contractual Changes: If an employee’s contract specifies ‘home’ or ‘remote’ as their workplace, an employer cannot unilaterally change this to ‘office-based’ without consultation and agreement.
- Implied Terms: Even if the written contract says ‘office’, a significant period of remote working may create an implied contractual term through custom and practice, which cannot be arbitrarily removed.
- Breach of Trust and Confidence: Making the demand in an unreasonable manner, such as without reasonable notice or despite knowing it causes significant personal hardship, might breach the implied duty of mutual trust and confidence.
- Discriminatory Demands: A mandatory return-to-office policy may trigger claims if it disproportionately impacts specific groups, e.g., women with caring responsibilities or disabled employees, and this may amount to indirect discrimination under the Equality Act 2010.
Ultimately, a return-to-office directive is not unlawful but the manner in which it is communicated, implemented and enforced may be. In an era where flexibility has shifted from privilege to expectation, employers who rely on rigid mandates risk more than disengagement and potential resignation. They risk legal exposure. The question is no longer whether employees can be required to return to office-based working, but whether the employer can justify how and why the decision was made.
Holiday & Holiday Pay Records
Talking about evolvements in the ERA 2025, from 6 April 2026, employers have been required to keep detailed and adequate records of holiday entitlement, leave taken, leave carried over and holiday pay, for a period of six years. Failure to do so will be a potential criminal offence.
To ensure this, the new Fair Work Agency was established on 7 April 2026 with the power to inspect records and enforce holiday pay compliance. Employers should update their HR systems to track leave electronically and to ensure compliance with the new six-year retention requirement.
As the legal framework continues to evolve under the Employment Rights Act 2025, the emphasis is moving away from blanket decision-making and towards demonstrable reasonableness. Employers who engage, listen and adapt are far more likely to retain both talent and productivity.
Case Law Update 📢
Pasha v Home Office [2026] EAT 42
The Claimant was employed by the Home Office as an immigration enforcement officer in 1991. Following an audit in 2020, it was discovered that between 2006 and 2017, she had accessed the Home Office’s IT system which included searches relating to her personal life. The Home Office had a clear policy that accessing IT systems without a legitimate business need amounted to gross misconduct.
Following a disciplinary process, which the ET accepted contained some procedural shortcomings, Ms Pasha was summarily dismissed. The Claimant challenged her dismissal based on procedural defects. The Tribunal acknowledged some departures from the ACAS Code of Practice; however, the EAT found that the employer had substantively complied and any defects did not render the dismissal unfair.
Key Takeaway for Employers: Perfect procedure is not required but substantial compliance is critical. Minor procedural flaws will not automatically make a dismissal unfair. However, it is imperative for employers to show overall fairness and reasonableness in the process.
Attorney General v Messi [2026] EAT 34
The Claimant had issued over 50 employment tribunal claims over several years, with none succeeding. She repeatedly failed to comply with directions, advanced unsubstantiated allegations, and made numerous defective applications for interim relief. Many claims were found to be vexatious or lacking merit. The EAT granted a Restriction of Proceedings Order restricting her ability to bring further claims without permission and to prevent abuse of process.
Key Takeaway for Employers: While it is quite a rare problem, tribunals will protect employers from serial litigants. If facing repeated claims, employers should consider applying for case management sanctions or restriction orders. It is very important to keep detailed records of prior claims to support arguments of abuse.
London Ambulance Service NHS Trust v Sodola [2026] EAT 6
Mr Sodola, a Black African employee, applied for a Team Manager role in April 2020, which was his fourth time applying for a promotion. At interview on 26 May 2020, he scored lower than the four successful candidates who were all Caucasian. Following verbal feedback, Mr Sodola requested written feedback on 7 June 2020. However, this was not provided until 23 August 2020 due to the pandemic and the interviewer being on annual leave.
Mr Sodola claimed direct race discrimination for a failed promotion application, and a three-month delay in receiving feedback. The ET rejected the promotion claim but found the delay in feedback was direct race discrimination, stating that the Trust failed to provide the feedback and his colleagues would likely have received it sooner.
The EAT reversed the finding of race discrimination highlighting that the ET wrongly took into account irrelevant factors to infer discrimination. There was no evidence to link the delay directly to Mr Sodola’s race.
Key Takeaway for Employers: Focusing on the ET decision solely, a key takeaway for employers is that process failures can create discrimination liability even where decisions are justified. Delays, poor communication and a lack of transparency can shift the burden of proof. Employers should ensure timely feedback and documented rationale for decisions.