Return to office challenge: terminations upheld in courts

'Remote working, working from home, and cross-border working proving an absolute headache everywhere'

Return to office challenge: terminations upheld in courts

According to a recent report in which 500 employers were surveyed globally, flexible work arrangements could be harming employees’ prospects.

The Future of Work 2023 shows 71% of the 500 C-suite key decision makers surveyed said those who work physically in the office will inevitably have more opportunities.

The global study by Herbert Smith Freehills focused on workforce-related issues and notes that many employers are pulling back on some freedoms of remote and flexible working permitted during the pandemic.

“The single biggest challenge for clients at the moment across Asia Pacific is return to work,” says Fatim Jumabhoy, Singapore managing partner and Asia head of employment, pensions and incentives at Herbert Smith Freehills. “By that I mean returning back into the office full-time, pulling back some of the benefits - if they can be termed in that way - that were granted to employees or some of the expectations that have built post-Covid.

Flexible work denial damaging to talent attraction and retention

“Many more people are requiring, demanding and expecting employees to come back into the workplace, seeing flexible work and working from home as a reward, as opposed to an entitlement.”

That's a huge challenge which potentially causes difficulties in terms of attracting talent and retaining talent, says Jumabhoy.

“I'd say remote working, working from home, and even cross-border working with all the associated challenges of tax and immigration and additional liabilities, is proving to be an absolute headache everywhere where across the region.

“We’ve seen some industrial action threatened for some of our clients, where employees are threatening to lay down tools and not working unless they are allowed to continue working flexibly.”

Carrot rather than stick best approach to RTO

Broadly across Asia, employees don't have the right to request flexible working, says Jumabhoy. “As long as the contract has a stipulated place of work provision, it is reasonable and lawful to direct employees.

“The advice we give to clients is that if they have been working remotely for a prolonged duration - as most have now - that you probably shouldn't do it straight away. You can, but you probably shouldn't. It's better practice to give employees advance fair warning of the change coming and maybe link it to a new bonus cycle.”

The jury is very much still out regarding which is the most effective tool to tempt people back into the workplace, she says. “The more successful campaigns have been those that have used a carrot rather than a stick, but even that is starting to wane.”

Some carrots which have previously worked but are fading in effectiveness, she says, include the mandated community day that inevitably includes some sort of food or beverage-related incentive. “Our clients tell us that when they do lunches or afternoon teas, employees come in for that and then leave.”

Career progression incentive for RTO

Jumabhoy’s advice is to find non-financial metrics that entice individuals to return to the office (RTO).

“Where we're seeing a little bit more traction is if employees can see a genuine buy-in for why being in the office is going to be helpful for their career progression. The opportunities for either lateral learning or external engagement, I think are more likely to be effective.

This only works though if there’s a top down approach with the rules applying to everybody, she says. “The worst of all measures is when employees do decide to come in, and they're coming into a largely empty office - that's actually even more damaging I think than not being there in the first place.”

Those who have attempted to impose a straight to return to office five days a week policy have struggled, says Jumabhoy. More common across Asia currently is to require three days, with a single community day, and then a second day run according to team, group, or geography. She’s aware some businesses are pushing to four days, and some are developing specific frameworks that enable employees to work in a different location for up to 14 days or up to 30 days, depending on the industry and risk profile.

Disciplinary action and termination for some refusing RTO

Jumabhoy notes some employers are taking disciplinary action. “We've seen a large number of cases where not only are employees working remotely and refusing to come into the office, they're actually not in the geography they're supposed to be in - and employers are really cracking down on that.

“We have also seen employers now move to take disciplinary action, including termination, and those decisions have been upheld by courts, across Asia.”

In Singapore specifically, the government's released an advisory to encourage employers to be flexible, but it has not gone so far as to make any mandatory requirements.

“Some jurisdictions throughout Asia Pacific do have a right for you to at least consider flexible working. Singapore hasn’t gone that far but we've definitely seen the challenges here - in fact I’d say that in Singapore it’s been harder to get people back into the office than elsewhere in Asia.”

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