Is there any employee liability for requiring remote employees to return to the office on short notice (such as a few days)?
Question: Is there any employer liability for requiring remote employees to return to the office on short notice (such as a few days)?
Answer: In calling on employees to return to working from the office on short notice, the likelihood of liability will depend on the circumstances and the particulars of the remote working arrangement.
If a remote working policy or agreement has been signed, the employer will be required to bring employees back to the office in accordance with the terms of the policy or agreement. For example, an employer may have a termination provision in the agreement or policy which allows the employer to require an employee to return to the office upon giving seven days’ notice to the employee. In the event that the employer did not comply with this provision and only gave a few days’ notice, the employee can likely reasonably refuse to return to work on short notice pursuant to the terms of the policy or agreement.
Providing short notice, such as a few days, for a return to work when such notice was not agreed to in advance could raise potential constructive dismissal claims. Constructive dismissal may arise where an employer unilaterally makes changes to the fundamental terms and conditions of an employee’s employment. An employee who does not agree to the changes and leaves his or her job may take the position that they have been constructively dismissed. Where established, the employee is entitled to compensation in lieu of notice and, where appropriate, damages.
Changing the location of work may be considered a fundamental term and condition of employment. If the employee does not agree to the change, they might be able to treat the employment relationship as having been repudiated. If that is the case, the employee will be entitled to pay in lieu of notice as if terminated without cause.
To avoid these issues, it is recommended that employers develop remote working agreements or policies which expressly permit them to terminate the remote working relationship and to require the employees to return to the office on short notice.
Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or [email protected].
