Are you being called back to work in the office after working remotely? You’re not alone. Although there has been a transformation in the workplace in recent years, many employers, citing productivity issues, call remote employees back to the office either full-time or on a hybrid basis. This leads employees to question whether employers can legally force a return back into the office. The even bigger question is what will happen if you refuse to return.

Contact an Employment lawyer before responding to the request.

Under certain circumstances, you may refuse to be called back to the office; if the employer insists, calling you back to the office without your consent may enable you to claim constructive dismissal and ask for termination pay.

However, if your employer does have the right to call you back, your refusal may lead to disciplinary action or even be deemed resignation without any entitlements to compensation. The stakes could not be higher.

Your employer may not be able to recall you to end your remote working arrangement unless (i) such recall right has been clearly and timely communicated, (ii) reasonable notice has been provided to you regarding incorporating such recall right into the terms of your employment, or (iii) remote working is not a fundamental term of your contract.

Speaking to an employment law expert to fully understand your rights is incredibly important. Below are several considerations to get you started in the process.

Contractual rights

Depending on the contract, employers may include the right, orally or in writing, to unilaterally recall remote workers back into the office and end the remote working arrangement. If they do have such a right, refusing to be called back could lead to disciplinary action, including potential termination for cause. If they do not, employers have to give reasonable notice for the change. However, if an employee refuses to return to the office in this scenario, it may lead to constructive dismissal and the right to wrongful dismissal damages.

As the Supreme Court explained in Farber v Royal Trust Co., [1997] 1 S.C.R. 846, constructive dismissal occurs when an employer unilaterally and fundamentally changes a term of an employment contract without providing reasonable notice of that change. The employee can treat the contract as wrongfully terminated, which, in turn, obliges the employer to pay damages in lieu of reasonable notice.

As such, whether ending remote work amounts to constructive dismissal depends on whether remote work is a fundamental employment contract term. Short of a written agreement precisely on this point, the answer will be case-by-case.

What do the courts say?

A recent case in the Ontario Superior Court of Justice, Small Claims Court, addressed this issue. In Byrd v Welcome Home Children’s Residence Inc., 2024 CarswellOnt 21744 (“Byrd”), the employee worked on-site at the employer’s care home. However, as the Canadian Forces had posted the employee’s husband to Europe, the employer allowed the employee to work remotely beginning in 2020. The husband’s posting was supposed to end on July 23, 2023.  There was no written agreement detailing this arrangement, nor did the employer specify that it retained the right to ask her to return physically to work. Initially, there were no issues with the employee’s remote work. However, on March 10, 2022, the employer required the employee to immediately return to the workplace physically or resign, although her husband was still posted abroad. The employee resigned and sued the employer for constructive dismissal.

Deputy Judge Kelly found that the employer, in requiring an immediate return to the workplace, without first giving reasonable notice of the end of the remote work arrangement, had constructively dismissed the employee.  Since the employer had remained silent for about 20 months after the employee’s move to Europe, the judge found that the remote work had become a term of her employment, and that clear and timely notice of the recall to working in the office was required. The employee was found to be entitled to wrongful dismissal damages equivalent to 6.5 months of pay.

The case provides guidance on the analysis of rights and obligations in the remote work environment. However, unlike decisions of the Superior Court of Justice, decisions of the Small Claims Court are not required to be followed as precedent, though the decisions may be persuasive.  Also, some special facts drove the judge’s finding that the remote work had become a fundamental term of employment. For example, when making the remote working arrangement, the employer was aware that the employee’s husband’s foreign posting was for a fixed period, not permanently, and so was the remote working arrangement.

This is different from another BC case referred in Byrd, Staley v. Squirrel Systems of Canada Ltd., 2013 BCCA 201 (“Staley”), a case decided before remote work became prevalent, but still relevant today.  In Staley, the BC Court of Appeal upheld the trial judge’s decision that the employer was entitled to call the employee back to the office, and they had just cause to dismiss the employee. The employee’s refusal to return to the Vancouver office was found to be “an act of willful disobedience and insubordination in relation to his employer’s order” to return to work.

The judge in Byrd distinguished Staley on the following factual grounds: in Staley, the employee moved with their spouse from Vancouver to Montreal permanently; although the employer initially allowed the employee to work remotely, within a month of remote working, the employer confirmed in writing that his permission to work remotely was temporary; within 3 months, the employer presented the employee with a new employment contract, providing that the employer could recall him from remote working to Vancouver office at any time; when the employee refused to sign the contract, he was ordered back to Vancouver; when he did not return, he was terminated without further notice or payment in lieu of notice.

In contrast to Byrd, where the employer said nothing about it until approximately 20 months after the employee’s move to Europe there was clear and timely notice in Staley.

What does this mean for you?

As such, the key to deciding whether your employer has the right to recall you to the office will depend on the following:

1. Whether remote working is a fundamental term of the employment contract;
2. Whether there is an agreement regarding your employer’s right of recall; and
3. Whether your employer has communicated such a right with clear and timely notice.

Without the above, your employer’s recall back to the office may result in constructive dismissal and termination pay.

That said, even without such a recall right, your employer may still be able to incorporate it by giving you reasonable notice.

To sum up, this can be a high stake situation, and the actual situation can be more delicate than the above scenarios and potentially involve termination of employment. It is advisable to consult with a legal professional before proceeding.