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Is tying bonuses to office attendance truly inclusive?

Is tying bonuses to office attendance truly inclusive?

Phil Steventon


Reading time: five minutes

Is the remote working movement really coming to an end? Some of the biggest firms in the country and the world appear to have answered that question.

News and content sites including Reuters, RollOnFriday and Legal Cheek have reported that many US firms with offices based in the UK are making it mandatory for lawyers and staff to be working in offices “more often than not”.

Skadden, Arps, Slate, Meagher & Flom (UK) LLP, Vinson & Elkins RLLP, Davis Polk & Wardwell London LLP, Ropes & Gray International LLP, and Weil, Gotshal & Manges (London) LLP have all announced that they'll expect their lawyers to work in the office at least four days a week.

And, most recently, Osborne Clarke LLP announced that for its lawyers to be eligible for bonuses, they'd be required to work out of the office at least three times a week. Graham de Guise, the firm’s chief people officer, told RollOnFriday: “We do expect our people to be in the office 'more often than not'," which means "three days a week spent in one of our offices or with clients".

This tying of bonuses to on-site attendance seems particularly troublesome and potentially even exclusionary as I believe this initiative will disproportionately impact certain staff, including neurodivergent staff.

Here are a few reasons why mandatory in-office days aren’t compatible with meaningful neuroinclusion.

  • Busy open-plan city-based offices can be a sensory minefield. The noise from constant chatter, phones ringing, printers whirring, the hum from fluorescent lights and aircon, bright sunlight glaring off monitors: too much of this over a prolonged period of time can be harmful and risk staff members getting overwhelmed and experiencing a meltdown.

  • If a neurodivergent staff member is recovering from a sensory meltdown, they can’t participate nor be productive as they're focusing solely on recovering and re-regulating themselves.

  • Some of us get fatigued easily from socialising too much, so we won’t be able to participate as much on days when we need to preserve our 'battery' for important client meetings.

  • Commuting can deplete our battery before we’ve even started our working day. Some of us can find public transport overwhelming, especially during peak times when it's cramped, loud and people are often acting inconsiderately. Conversely, some of us can find driving overwhelming too, given the amount of information we have to handle at any one time while on the road.

For neurodivergent staff, expectations of in-office working can require a high degree of masking in a high-sensory environment and for socialisation, that can make it extremely stressful and exhausting to work in-office for a prolonged period if that staff member finds it extremely difficult to do so. And if an employer is punishing or neglecting those employees who aren’t spending at least three days in the office, then it becomes exclusionary at best, and discriminatory at worst.

And it's not just neurodivergent staff who'll be disproportionately affected by mandatory in-office days either.

  • Physically disabled staff may face barriers to accessing the office, either because of the building or the commute being inaccessible.

  • Parents of school-age children, particularly single parents or those on lower incomes, need to ensure their children get to and from schools safely, so mandatory office working may not be compatible with them achieving that.

  • Staff from lower socio-economic or ethnic minority backgrounds are statistically more likely to live further away from a city-based office, and the commute will be a heavy time and money cost.

  • Some staff may find managing their mental health easier at home where they have what they need to regulate themselves and be able to do a good day’s work. This can be especially true if work-related stress or bullying at work has caused a staff member significant mental or psychological distress and harm.

As a couple of observational comments (and not legal advice), an employer fundamentally changing a term of an employment contract, including the expected place of work, without properly consulting that employee, could see a claim for constructive dismissal if the employee doesn’t agree to the change or can’t reasonably meet the new terms.

Further, there are statistically more female remote workers than male, and statistically women take on more household and childcare duties than men (of course each family/individual will vary), so might there be equal pay claims or claims of indirect sex discrimination in response to this move by many law firms? It's certainly worth thinking about.

But beyond all of the technical points, there's a key point around choice. Following a hugely positive response to the remote working movement, I don’t believe mandatory in-office working policies will make employees more engaged with the business if their choice is being taken away.

If the covid-19 pandemic showed us anything, it's how well the profession can adapt to remote working and how beneficial it's been for meaningful inclusion and promoting good mental health. And empowering employees to be able to make the best choice for ourselves, rather than having that choice taken away from us, means we'll be happier and more engaged with our employer and our profession.

In addition, if firms absolutely need staff in the office “more often than not”, then instead of taking away the choice, it'd be more worthwhile creating an environment and office culture that staff actually want to and can work in. It's much cheaper to do that than lose talented staff to competitors.

When I read news such as this as a minority aspiring lawyer, it's difficult to not believe that, with such influential players in the profession making these moves, the profession is backpedalling. But I'm fearful that this is becoming the case.

So many of us haven’t been able to access fulfilling work, a healthy living, and a sense of belonging because of 'business as usual'. Remote working has been life-changing for so many, and I hope that it isn’t taken away just for the sake of returning to 'business as usual'.