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Return-to-office mandates and the law of unintended consequences

  • Constantine Law
  • Jun 9
  • 5 min read

New research from King’s College London[1] about working life in the UK has found that less than half the people surveyed would comply with a full time return-to-office mandate, with almost 10% stating that this would compel them to leave their job. Working patterns borne of necessity during the Covid pandemic are, it seems, very hard to shift.


As companies across the UK roll out return-to-office mandates, every week seems to bring new edicts from the UK’s big employers desperate to get their workers back to the office:  with HSBC being the latest big employer last week to threaten cuts to bonuses of those not meeting the required office attendance[2]. But many businesses are failing to account for a critical consequence of this policy: the potential exodus of experienced, senior female talent.

 

Flexible work was a game-changer for women

During the pandemic, remote work opened new possibilities for many professionals—particularly women—who juggle work and caregiving responsibilities. Women are still far more likely than men to take on caring responsibilities. A 2022 study by The Centre for Progressive Policy shows that nearly half of working-age women provide an average of 45 hours of unpaid care every week, compared to 25% of men who offer 17 hours.[3] For women in leadership positions—who often already navigate the glass ceiling and the motherhood penalty—remote or hybrid work has been critical in balancing the demands of high-responsibility roles with life outside work.


Return to work mandates risk pushing out women who either simply can’t or no longer wish to conform to a five-day office model—not because of a lack of commitment or productivity, but due to structural inequalities in domestic labour and our ever aging population requiring many to care for those young and old.


A 2023 study by CIPD revealed that 6% of employees had changed their job in the past year owing to lack of flexibility and 12% left their sector altogether[4]. In terms of retention, there is clearly work to be done.

 

Employers should beware of indirect discrimination

Employers who enforce a back to work mandate need to be mindful that this is carefully managed from an employee relations point of view, but also avoid future claims of discrimination.  This type of policy could conceivably give rise to claims for disability, sex and age discrimination.   Prior to any decision being made, careful consideration needs to be given to justifying the policy, and whether an alternative less discriminatory means of achieving the same aim can be found. 


In 2023 Nationwide Bank lost an indirect discrimination case after attempting to force a manager back into the office.  She had previously worked on a hybrid basis in order to manage her caring responsibilities for her elderly, disabled mother.[5] Failure to manage this employee’s flexible working cost the company £350,000 in compensation.  


Employers should take into account that inflexibility risks not only an exodus of talent but also a loss of corporate credibility. In an era where diversity, equity, and inclusion are central to business strategy, inflexible workplace policies can risk leading to damaging press coverage for a brand.

 

Why the UK is a leader in WFH?

The UK is the leader in remote working in Europe with WFH levels up to three times higher than some European counterparts[6]. In part, the UK’s services-based economy lends itself better to remote working than countries where industries like manufacturing and retail are the biggest job-providers[7]. Culturally, it has become acceptable and in some industries, the norm.


Support for flexible working has also come from the top down, with the government throwing its weight behind the right to request flexible working arrangements. Compare this attitude with the USA where one of President Trump’s first executive orders was to mandate a full time return to work for government employees. Add to this the fact that British workers have the some of the longest commutes in Europe[8] and it’s easy to see why a hybrid or WFH model once established,  feels hard to give up.  Pret A Manger has recently announced that it is trialing shops aimed specifically at hybrid workers in towns (rather than business districts), so the structural shift looks like it is here to stay[9]. 


Generational Disparities

We have 5 generations making up the current workforce. What works for one generation, does not necessarily work for the others.


Not everyone wants or needs the flexibility to work from home. There are, generational differences, with less than a quarter of Gen Z workers (those largely without other responsibilities outside work) seeking a remote-first job, compared with 35% of Gen X employees[10]. For these younger employees, it can be very productive to have face-to-face opportunities for mentoring and learning.


Conclusion

Return-to-office mandates may be welcomed by many sectors of the working population and certainly are seen by large employers as the way forward for their business, but for many senior women, they can represent a step back.


In the UK, where gender gaps in pay, promotion, and leadership persist, maintaining workplace flexibility can retain vital senior leadership and experience. Greater workplace retention can also translate into a better bottom line for business. For those employers who can’t or won’t provide a flexible model – be careful what you wish for.


Whether you wish to get your team back to the office, or you wish to challenge your employer’s mandate, we can help guide you through.  At Constantine Law, our team consists of employment, business immigration, regulatory and business crime specialists.  We strive to protect our clients' work – their businesses, their ideas, their jobs and their futures so that they can prosper.  To learn more about Constantine Law, go to: www.constantinelaw.co.uk



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