Unpacking The Office Move: Legal Risks, Employee Rights And Practical Solutions

While you're unlikely to encounter an issue if you're moving down the street, things may get complicated if you're thinking about moving further afield such that it will affect employees' commuting arrangements.

Many employment contracts contain a "mobility" clause which allows the employer to make changes to an employees' place of work. How this is drafted can vary significantly; when seeking to rely on it, the employer will need to act in line with the terms of the agreement and make changes in a reasonable way.

Employers should not always feel comforted by very broad and vague mobility clauses: they may be open to challenge as too ambiguous to rely on. However, if you have express contractual wording allowing you to move offices within a set number of miles, you may have a greater chance of relying on such wording. Even with this wording in place, careful consideration should be given to the impact that the move would have. Clearly you should carefully consider the likely impact the office move will have on your employees. For instance, how will it affect commuting time and transportation options?

Ultimately, if you're asking employees to move beyond the express terms of their contract you will need to obtain their express agreement to a change to their terms and conditions. If an agreement can't be reached, you may then need to consider whether a redundancy situation has arisen based on a change in their normal "place of work" (see below).

Incentives such as relocation payments or assistance for a while with any increased commuting costs may be a helpful tool in encouraging employees to move. Considering these issues carefully and well in advance of the move, as well as implementing a good communication strategy, will help you to navigate most challenges.

Given the huge changes in working practices in recent years, it's very likely that you will have staff that work entirely remotely, or on a hybrid basis. It's essential to both understand the basis for these working arrangements, and engage with these members of the team, at an early stage. Whether someone has a right to work from home may vary depending on how the arrangement came into existence and we have written more about this (potentially complex) question here.

However, remote or hybrid workers will undoubtedly want to know if they can continue with this working arrangement. This is often a top priority for staff; be ready to listen – key talent may decide to leave if they are not thrilled about what these plans mean for them. Gathering data on office attendance levels and expectations in advance will help to anticipate reactions and justify decisions.

Also, how will the move impact on this with flexible working arrangements (whether that flexibility relates to hours or working location)? If your office move is inspired by bringing more employees into the physical office environment, then you should engage with these members of team and explain your rationale. However, it's important to remember that agreeing to a flexible working arrangement means a change to someone's contract. As with all contractual terms, this would survive an office move but be sensitive to the fact that a new location may mean that some working arrangements need revisiting. You should also be mindful of the fact that the move may have a more significant impact on those with caring responsibilities or health needs. That might mean the office move carries some discrimination risks which need to be taken into consideration.

Moving to a new office may require resourcing changes. A common example may be reception, facilities or cleaning staff who are engaged to look after/operate in the old building. You may need more or less staff, staff with slightly different skills or you may no longer need them at all. Some staff may be required to stay longer to de-commission or maintain the existing premises so careful thought may need to be given to retention arrangements or additional resources. You should also carefully consider pooling and selection criteria if you are reducing the number of people doing the same or similar work.

You should consider whether the staff affected are engaged by the company directly or whether they might be agency staff or engaged by another third-party provider. This will affect their employment rights and, if they are not engaged by the company, you should be prepared to engage with the agency or third party to discuss the office move arrangements.
If the service or operation is no longer required in the new office, you may need to consider redundancies or cancelling agreements with service providers. Exactly what is required in terms of due process will depend on numbers and how staff are engaged and is certainly something that you should get specific advice on. Starting the process in plenty of time before the move is crucial.

The situation may be trickier if the service or operation is required in the new office, but you intend to use another provider or perhaps the new office provides these services for you. In these cases, you should seek legal advice on whether the Transfer of Undertakings Protection of Employment Regulations (TUPE) might apply by reason of a service provision change. We have written more about this topic here.

If the new office is a significant distance from the original office you may need to consider whether a redundancy situation has arisen because you no longer require employees to carry out work in the old location. This can be a complex question, particularly if there's a mobility clause in the contract, or when the reality of their role is that their place of work varies. Also, would the role at the new location be suitable alternative employment? Given the onerous requirements for collective consultation if an employer is proposing to dismiss 20 or more employees within 90 days or less, this is certainly something to seek further advice on.

Under the Employment Rights Bill relocation looks to become more uncertain. Under the new law, it will be automatically unfair to dismiss someone for refusing to agree to a variation of contract, subject to very narrow limitations. Refusing to agree to new place of work certainly looks like it could be in scope of these provisions and could in theory trump an employer's argument that it was a fair place of work redundancy. This sort of scenario may well not have been the intended scope of this part of the Employment Rights Bill, but it certainly adds complexity to the office move scenario.

What about the impact on existing working arrangements? Many of these will be continuing temporary pandemic arrangements without formal contractual changes. In those cases, employers can generally enforce office-based work contracts, provided they follow the proper process. However, more caution will be need if the contractual terms are unclear or have potentially been altered by subsequent communication. Read more about the potential complexities around this here.

What happens if some staff refuse to comply with a change to your hybrid working policy? This may be a good moment to review and reflect on your disciplinary policy and consider whether managers are comfortable with enforcing the changes that you are implementing. Nobody likes having difficult conversations, but ignoring problems can lead to bigger issues. Disciplinary steps should always be handled with care and each individual's circumstances should be carefully reviewed before any action is taken. Care should be taken agreeing exceptions that may undermine your ability to enforce the policy.

Proximity bias describes a situation where managers prefer, or treat more favourably, those who are physically close to them. In this context, this may affect those who, as a result of an office move, will not be in close proximity with their manager – either due to hot-desking, new seating plans, or working remotely. When managers delegate interesting work and opportunities, those who are not close by may lose out. Leaders, and promotion policies, should be alive to this bias and ensure that those who do not – or cannot – work nearby their managers are afforded the same opportunities and are valued equally as those who do, particularly as there may be discrimination risks if health or caring responsibilities are at play.

As we've already flagged, a change in location or office space may disadvantage employees with certain characteristics more than others. For example, those with disabilities may find that the location of the new office, or its facilities, prevents or inhibits them from attending the office. There may also be new expectations or policies associated with increased presence in the office which need to be carefully considered.

Employers should therefore be mindful of their duty to make reasonable adjustments – to remove or reduce disadvantages the new office may pose to those with disabilities.

Similarly, those with caring responsibilities may be disadvantaged if a new hybrid working policy or change of office location makes it more difficult for them to attend to their caring duties or makes school/nursery drop offs and collections impracticable. There may therefore be an increase in flexible working requests to accommodate the change in location and/or travel arrangements.

Getting these basic elements wrong may lead to discrimination claims against the company being pursued in the Employment Tribunal.

As noted above, a change in office facilities could present challenges for certain employees. In particular, hot-desking and open-plan offices are increasingly the norm in the corporate world. If the new office presents a new layout or different style of office, employers will need to think about how this affects their workforce and whether any reasonable adjustments need to be offered to ensure that disabilities are accommodated.

Some neurodivergent employees, for example, may find moving from cellular offices into large open spaces more difficult than others and practical support measure such as noise cancelling headphones or other assistive technology could be beneficial. However, both Acas and the CIPD suggest employers proactively invite requests for reasonable adjustments from all staff, not just those who have disclosed a neurodivergence. This inclusive approach ensures that everyone has the opportunity to request the support they need to perform their best at work.

In terms of assessing risks more generally, undertaking risk assessments is an important way to ensure the health and safety of your employees. Be sure any potential hazards in the new office are identified and take steps to mitigate these. With new rules in force regarding sexual harassment, many employers are choosing to carry out a sexual harassment risk assessment to identify risks arising from their office spaces or working practices. A new office space may present an opportunity to either renew or undertake such an assessment.

Employers should be aware of any data concerns associated with transferring sensitive information during the move and protecting it upon arrival at the new office location. Before moving, decide who will be responsible for safeguarding the company's sensitive information during this transition and be sure to audit the sensitive data that is in scope. Develop a plan that will protect your company's physical and digital data – this should consider details from who will physically move the relevant data, whether it will be stored in any intermediary location, and how to report any data breaches during the move.

Once you have assessed the potential impact of the move on staff, you may be concerned about some staff looking to leave (e.g. because the commute has become less practical for them, or they may not agree with an expectation to work more in the office).

If these are key staff that you would like to retain, you could consider offering retention bonuses. These bonuses are paid out if the employee stays and does not resign for a certain number of months or years. These can be particularly useful during periods of change where you are looking to ensure a level of certainty.

The terms for retention bonuses should be set out carefully in a contractual document or contract addendum.

When planning the move, as well as the potential legal complexities we've flagged above, it's important to also remember the practicalities. For example, will there be changes to transport options or parking arrangements? Additionally, will the move affect any benefits that you offer relating to travel / office location such as season tickets and travel loans. Our team of HR consultants can assist you with all aspects of these preparations.

If you have strict start / finish times for employees and the new office location is likely to cause teething problems relating to travel, you could consider putting in place temporary measures to allow staff greater flexibility with their start / finish time. The parameters of this change should be well documented and clearly communicated to ensure that staff are aware of when it will apply and cannot argue that it represents a permanent change to working arrangements.

Alternatively, as noted, if staff need more permanent flexibility, you may need to point them to your flexible working policy so that they can make a formal request.

You could also consider putting in place temporary incentives for staff to travel to the new office such as offering a contribution towards their travel costs. You should check the tax status of this arrangement as this is likely to be taxable rather than a tax-free expense if the travel is to the employee's main place of work.

Finally, it's worth putting together a clear communications strategy. Employees will want to be kept in the loop with developments and key dates relating to the move. Ensuring that they have this information will help to avoid employee relations issues as staff will feel more prepared.