By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
For many employees, remote or hybrid work was not a temporary benefit, it was a key reason they accepted the job or remained with the employer. As employers increasingly require a return to the office, a key question arises: can an employer legally force you back to in-office work?
The answer depends on the employment contract, workplace policies, and the history of the working arrangement. Every case is fact specific.
Start With the Employment Contract
The employment contract is the starting point. If the contract states that the employee works remote or virtually, that term forms a part of the employment agreement. An employer cannot usually change a fundamental term of employment without potentially facing significant legal consequences.
A forced return to the office may amount to a unilateral change to a fundamental term of employment, which may support a constructive dismissal claim.
However, some contracts give employers greater flexibility. For example, a contract may include:
- a clause allowing changes to the employee’s work location; or
- language that work location is subject to the employer’s discretion.
In those cases, the employer may have greater authority to require office attendance, provided the change is exercised reasonably and in accordance with employment laws.
What If the Contract Is Silent?
Many contracts do not address remote work, especially those signed before or during the pandemic.
When the contract is silent, courts will look at how the employment relationship operated in practice. If an employee worked remotely for a significant period with the employer’s knowledge and consent, remote work may become an implied term of the employment relationship.
Ontario courts have accepted that long-standing working practices, in some circumstances, can become binding terms of employment. As a result, requiring an employee to return to the office, may be viewed as a substantial change to a fundamental term of the employment relationship, depending on the specific facts of the case.
Can a Return-to-Office Demand Be Constructive Dismissal?
Yes, in some cases.
Constructive dismissal occurs when an employer unilaterally makes a substantial change to an essential term of the employment relationship, without the employee’s consent.
A mandatory return-to-office policy may give rise to a constructive dismissal claim where, for example, it changes:
- a fully remote position into a full-time in-office role
- a long-standing hybrid work arrangement into a rigid office attendance requirement.
When assessing these claims, courts will consider a range of factors, including:
- the wording of the employment contract
- the length of time the employee worked remotely
- whether the remote arrangement was intended to be temporary or permanent
- the extent to which the employee relied on the remote arrangement, such as by relocating
- whether the employer provided reasonable notice of the change
That said, not every return-to-office policy will amount to constructive dismissal. Employers generally retain the right to manage their workplaces and implement operational changes. The key legal question is whether the change fundamentally alters the terms of the employment relationship.
Can Employers Rely on “Reasonable Notice”?
Sometimes.
An employer may be able to introduce a return-to-office policy if they give employees enough advance notice of the change.
However, giving notice does not automatically make the change lawful. If remote work has become an important part of your employment agreement, whether because it was expressly promised or because it has been the accepted arrangement for a long period of time, a mandatory return to the office may still amount to constructive dismissal.
This is especially true where the employee accepted the job, remained in the job, or made important life decisions based on the expectation that they could work remotely.
That said, where an employer clearly advises an employee that the new arrangement will take effect on a future date and that their employment will end if they do not accept it, the notice period may count toward the employee’s common law notice entitlement. In other words, the employee may still have a constructive dismissal claim, but the amount of severance owed could be reduced by the notice already provided.
Do Not Resign Without Legal Advice
Employees should act carefully before resigning.
Constructive dismissal claims are highly fact specific. A rushed resignation may weaken a claim or be treated as voluntary resignation.
Before taking action, employees should:
- review their employment contract
- document remote work history
- avoid agreeing to changes without objection
- obtain legal advice
Conclusion
Remote work disputes continue to evolve under Ontario employment law. While employers retain broad management rights, they cannot always require employees to return to the office without facing serious legal risk.
A mandatory return-to-office policy may amount to constructive dismissal where:
- the employee was hired into a remote role; or
- remote work became a long-standing and accepted fundamental term of the employment relationship; and
- no reasonable notice was given for the change
Whether an employer can lawfully require a return to the office will depend on the specific facts of each case, including the wording of the employment contract, the history of the working arrangement, and the extent to which the employee relied on remote work.
Employees should consider obtaining legal advice before accepting or refusing a return-to-office directive.
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Learn more about employment law through the articles below:
- Tech Layoffs in Ontario: Why Your Severance Offer May Be Significantly Undervalued
- Return-to-Office Orders: Business as Usual or Breach of Contract?
- Who is entitled to Reasonable Notice, and how is it calculated?
DISCLAIMER: This article/blog is provided for educational/informational purposes only. This blog does not constitute legal advice. Do not rely on any advice before speaking with a lawyer. This blog does not form a solicitor-client relationship.
