Employers warned to think twice before forcing staff back to the office
Businesses are being warned that pushing staff back into the office without careful, consistent handling can quickly land companies in legal trouble—even if the initial business decision is lawful.
This is the feedback from Employment law associate Ayesha Karjieker at Cliffe Dekker Hofmeyr (CDH), who said a recent Labour Court ruling has sent a clear warning to employers.
She explained that, as more companies move to end remote work arrangements, how return-to-office decisions are implemented matters just as much as the decision itself.
Karjieker added that while employers are generally within their rights to end remote or hybrid working, the way those decisions are implemented really matters.
In the case she discussed, the court found that what began as a reasonable operational change was mishandled so badly that it crossed the line into constructive dismissal.
The ruling came from the Labour Court matter of Lewis v CCMA. Karjieker said the employee had been working remotely from Cape Town with her employer’s approval.
When the business later lost major clients, the employer decided to cancel remote working with effect from January 2024 and required employees to attend offices in Randburg and KwaZulu-Natal.
According to Karjieker, the court accepted that recalling employees to the office was reasonable and lawful.
However, she said the situation unravelled because of how the employer dealt with Lewis’s medically certified sick leave for anxiety and depression.
“What tipped the situation into constructive dismissal was how the employer handled Miss Lewis’s medically certified sick leave,” Karjieker explained.
She added that mental health-related leave is “particularly risky for employers” if not handled sensitively.
When the employee submitted a medical certificate for anxiety and depression, HR initially confirmed that she would be on paid sick leave. Just four days later, the employer reversed course.
The company withdrew its approval, accused the employee of malingering, and withheld her November salary.
Courts are increasingly scrutinising return-to-office policies
Crucially, the employer did not use its own internal verification mechanisms, such as contacting the doctor or treating the absence as unpaid leave pending an inquiry.
“This illustrates how easily inconsistent policy application can expose a company to legal action,” Karjieker said.
She stressed that employers should not default to “accusatory positions or docking pay prematurely” when employees present medical evidence. Instead, they should follow contractual and policy processes to verify and manage absences.
Looking at the broader implications, Karjieker said return-to-office directives driven by operational pressures can be objectively reasonable, but they must be administered with engagement and consistency.
Poor communication, inconsistent application of policies, or mishandling health, pay, or performance issues can create conditions that employees may experience as intolerable.
When that happens, “what begins as an operational shift can escalate into allegations of constructive dismissal”.
Karjieker added that courts are increasingly scrutinising how employers manage transitions back to the office.
Even where operational decisions are lawful, judges are looking closely at whether employers treat employees fairly, follow their own procedures, and maintain trust.
The judgment does not prevent employers from ending remote work, she said, but “it raises the bar on how things are done”.
Her advice to employers is to communicate operational changes clearly and consistently, follow internal policies, and do not deviate from established procedures without good reason.
Managers may have discretion around pay, performance, and sick leave, but only if their decisions are reasonable, well-communicated, and grounded in company policy.
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