AskHRD: A top performing employee refuses to return to the office. Should I make an exception?

Should HR fire an employee for insisting on remote work – or is that a fail in the Great Resignation?

AskHRD: A top performing employee refuses to return to the office. Should I make an exception?

Recalling employees to the office after so long in remote work can be jarring – for both the staff and the HR leader. While some people will jump at the chance to come back to the workplace, others may have found a rhythm in remote work – one they’re unwilling to break. But what if it concerns one of your top performing employees? What if a highly valued, superstar flat out refuses to come back to the office? Should HR make an exception in order to keep the talent, or should you apply the same rule to everyone?

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Make enquires

The first step it to consider why the employee doesn’t want to come back. Are they responsible for childcare? Do they have concerns around health and safety? Is it a case of making slight accommodations to ensure you don’t lose them entirely? And, what exactly makes you so certain they are ‘top performing’ in the first place?

“The first matter to consider is why is this person your top performer?” questioned Dr Melanie Peacock, associate professor of HR at Mount Royal, “Do you have relevant data to support this assessment or is the labelling based upon subjective impressions? If there are concrete facts to support that this individual is a top performer, then it is critical to assess if the behaviours that result in top-tier performance can be maintained in an ongoing remote working environment. 

“If the decision is made to let this employee continue with a remote working arrangement, I suggest clear terms of reference be drawn up detailing performance and communication expectations as well as agreement to review the situation in a few months, with the employer reserving the right to recall the employee back to work. One shouldn't commit to a situation ad infinitum until you have had a proper chance to assess outcomes in the new landscape we’re all traversing.”

Can I fire someone for refusing to come back to the office?

Ah, the million-dollar question. Say you’ve exhausted all other options; you’re set on your return-to-work policy and are adamant there’s to be no exceptions. Can you then proceed with disciplinary action – or even termination?

“As we move towards the second anniversary of this pandemic, there’ll be a strong argument on the part of the employer, who implemented the work from home arrangements, that the employee knew that requirement arose in the context of a public health emergency,” Matthew L.O. Certosimo, partner at Borden Ladner Gervais LLP, told HRD. “As such, employers will say that work from home was temporary, linked to the pandemic, not a permanent feature of the employment relationship.

“Essentially, at some point, employers may find themselves having tacitly agreed to an effective amendment,” Certosimo told HRD. “The key piece of advice for employers is to communicate the temporary nature of the work from home arrangement – explaining that it's necessary because of government or public health orders and health and safety practices – and to outline their return-to-work plan.”

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Reconsider your policies

Are you dead set on a return to the office? If you are, then a causality of that may be a higher turnover - that’s simply the price you have to pay. Consider whether or not you can be flexible, if that means holding on to your top talent. After all, in the midst of the Great Resignation, can you afford to be losing your people to more amenable employers?

If all else fails, perhaps try some negotiation – offer a bonus scheme or other forms of flexible working. Above all, explain to the employee that if you were to make an exception, then it may cause discord amongst the staff. 

“If you allow one employee to work remotely, it’s important for other employees to clearly understand why one individual is being given the option to work from home,” added Dr Peacock. “It must be transparent to those who are returning to the office that their work roles, such as the need for ongoing, complex, instant collaboration with others, necessitate this or that demands from customers and other stakeholders necessitate on-site work. It may also be that certain employees need to be on-site so that they can receive performance coaching and continuous development. This requires frank, and yes often uncomfortable, conversations but this needs to be done. 

“To treat people fairly you have to treat them differently. The key is that there needs to be clearly communicated understanding across the employee base as to why differences occur. If not, resentment, frustration, and disengaged workers will likely result. Employees may also leave if they don't understand why these types of decisions are being made and if they believe they are being treated unfairly and inequitably.”

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