What constitutes constructive dismissal?
Employers generally have the right to decide whether employees work in-office or remotely. However, in some cases, an employer’s unilateral and fundamental change to an employee’s terms of employment (including to their place of work) may constitute constructive dismissal. This means that if you were hired as a remote worker and your employer orders you to work in the office instead, this could amount to a constructive dismissal.
How do I know if my contract is just for remote work?
If you were hired as a remote worker, there may be a term in your contract which states that you are permitted or expected to work remotely. This may be explicitly stated in your contract but may also be an implied term of your contract of employment if you have been working remotely for an extended period. If this is the case, then it is likely that your employer will not be able to compel you to work in the office without it constituting a constructive dismissal.
However, there may also be a term in your contract which states that the employer may require that its remote hires come into work in the office. In this case, your employer may be able to request that you work in person from the office even if you do not agree.
What if I live far away from my employer?
With remote hires during the pandemic, there is a chance that you live a substantial distance from your employer’s office which makes commuting unreasonable. If there is no express term in your contract about remote work, but you have been working remotely for an extended period, you may be able to argue that remote work is an implied term of your employment and that you are therefore not required to return to the office. However, if there is an explicit term in your contract that compels you to ultimately return to work in person, you may be required to do so, regardless of the length of your commute.
Can I be fired or punished by my Employer for refusing to work in person?
If your contract states that you will ultimately be required to work from the office, then your employer may take reasonable steps to punish you and ultimately terminate your employment if you refuse to comply. However, if there is no express term in your contract which compels you to return to the office, or if remote work has become an implied term of your contract, your employer does not have just cause to punish you or terminate your employment.
What if I need to work remotely due to a disability or child-care responsibility?
If an employee has a disability which requires them to work remotely, then they may be able to request accommodations to allow them to work from home/remotely. Similarly, if an employee has childcare responsibilities, they may be able to request a remote work arrangement to accommodate these responsibilities.
Contact Us
To find out whether a change in remote work requirements would constitute constructive dismissal in your case, or to have your employment agreement reviewed, contact our team.
Author: Ava Clarke, Elizabeth McConkey
Date: Febrauary 21, 2025
