One of the biggest changes to career and workplace culture as a result of the pandemic has been remote working. While the concept of remote working and the even more extreme “digital nomad” lifestyle is not new, there is no doubt that the pandemic and resultant lockdowns greatly accelerated the adoption of remote working, particularly in the more traditional industries and professions.
We have previously featured the views of employees on how remote working has changed the way their work (“Lessons from Lockdown: How COVID-19 and remote working have changed the way we work”), and also published insights from young lawyers on the legal industry’s experience with remote working (“COVID, MCO, and the Malaysian legal industry — Part 1: Money (paycuts, revenue), remote working, and technology”).
Employers now want employees back in the office
However, in the second half of 2022, this trend reversed. Employers who in 2020-21 seemed to have been convinced of the viability of allowing employees to work remotely or flexibly began to introduce policies mandating that employees needed to be in the office for a specified number of days each week.
In many industries, employees have been reluctant to return fulltime to the office, and compliance with these new directives has been mixed — it is common for employers to report that a “three days per week in the office” policy sees employees turning up for only two days each week.
It has been in the news in the past week that Apple are threatening disciplinary action against employees who fail to come into the office three days a week. Apple are reportedly tracking employee in-office attendance and will give employees escalating warnings, which could result in termination.
Many multinational businesses are similarly seeking to enforce these new directives more strictly in the different jurisdictions they operate in, and are finding that doing so can be legally complicated.
Remote working in Malaysia
Malaysian employers and employees adopted remote working for the same reasons as most others around the world did during the pandemic — because it was the only way to keep working through the lockdowns.
The conversation surrounding remote working has continued in Malaysia due to the coming into force on 1 January 2023 of the amendments to the Employment Act which allow employees to submit a written application to their employer for a flexible working arrangement.
However, in practice, the flexible working arrangement provisions in the Employment Act have had very little noticeable impact so far. Organisations which are open to flexible working arrangements had already independently introduced flexible working policies, while companies which are not keen on such arrangements would naturally foster an environment which discourages applications.
In any case, the Employment Act provisions do not create an obligation on employers to reasonably consider these applications, or to provide fair or reasonable grounds for refusing them.
Can employers enforce a return-to-office policy?
The question of whether an employer can insist that an employee who has been working remotely due to the pandemic now be required to return to the office either partially or completely is essentially no different from any situation where an employee refuses to comply with an employer’s instructions.
In general, Malaysian law recognises insubordination as potentially being a serious misconduct which could constitute “just cause or excuse” and enables an employer to fairly dismiss an employee. An employee would be deemed to be insubordinate if s/he does not comply with an employer’s reasonable and lawful instruction.
There are many Industrial Court decisions that have established the relevant principles in a case of insubordination. However, as applies to all employee misconduct scenarios, it does not give the employer an automatic right to terminate. I have previously shared about a Court of Appeal case on this issue — “Case Update: Court of Appeal considers whether an employer can dismiss an employee for insubordination” — where the Court of Appeal decided that a termination of employment resulting from an employee’s refusal to follow instructions was an unfair dismissal.
These are the key factors that employers should consider when implementing and enforcing a return-to-office directive or policy:
- Whether the directive or policy is necessary. The first consideration for a reasonable employer should be to think about whether it is necessary to insist that employees return to the office either partially or permanently. What is the reason behind the decision to impose the directive? Is it possible for the work or services to be carried out just as efficiently on a remote work arrangement? Employers who want to have a happy and thriving workforce should carefully consider these questions before even beginning to assess the legal implications.
- The directive or policy must be reasonable. The law would not punish an employee for refusing to comply with an unreasonable or unlawful instruction. However, in most cases, requiring employees to revert to working from the office is likely to be deemed to be a reasonable instruction.
- The employee must be wilfully disobedient. This means that an employer should not punish an employee for a non-compliance with an instruction where it was just an honest mistake or an oversight. The employer must be able to show that the directive or policy was clearly communicated and understood.
- There must be a fair disciplinary process. As a general rule, employers should ensure that there has been a fair disciplinary process before deciding on any punishment. It would be expected that an employee would be given a chance to explain him/herself because a final decision is made. Employers would also be expected to comply with any internal disciplinary or misconduct related guidelines or policies.
- The punishment must be proportionate. Employers should always adopt a progressive disciplinary system. Not all misconduct should be immediately result in a dismissal, and employers should be careful to ensure that the punishment is not excessive. Employers should also take into account all relevant factors, such as the employee’s length of service and disciplinary record.