“Understandably, people want one size fits all, black and white answers, but it’s never that simple in terms of the requirements that are imposed,” he said.

“So yes, an employer can [mandate coming back to the office] but they need to think it through and the delivery and consultation with staff are so important. You have to understand the profile of your workforce and work with that.”

Mr Jackson said that employers have a general legal duty to uphold safety in the workplace, as set out in the Workplace Health and Safety Act. And in the height of COVID-19, upholding the safety of staff may include having them work from home, or not being able to have 100 per cent of employees in the office at the same time.

“If you’re in a high-risk environment, you’re going to have to think about what the risks are, both from an industry perspective and also from a business perspective. And consultation is influenced by the safety regulators – it makes up for award obligations for any workplace change and so consulting with employees is an important part of doing that,” he said.

At Rigby Cooke, based in Melbourne, the firm has staggered the return to the office despite government restrictions easing. The firm hasn’t had 100 per cent of its staff in the office since before the pandemic, with most teams in two days a week.

Mr Jackson added that employers should ease employees back into the office rather than rushing them – focusing on communication and empathy.

“It’s really incumbent on the law firm being ready to anticipate that fear and anxiety and concern, and being ready to communicate calmly, professionally and thoughtfully, not overly rushing things and I think that will probably answer most, if not all, of the concerns,” he said.

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“Fluidity is really important, as is understanding peoples’ fears.”

Some BigLaw firms have had flexible working arrangements in place since before the pandemic, with Lander & Rogers recently promoting two female lawyers who are both working three days a week, as well as MinterEllison and Herbert Smith Freehills also offering a hybrid working model to their employees.

Genevieve Collins, executive partner at Landers & Rogers, spoke to Lawyers Weekly last month about the firm’s flexible working program, Flex@Landers and how employees at the firm have been taking advantage of the program.

“The framework specifically addresses the changing role of leadership in a hybrid working environment; the need for adaptive learning and mentorship models; and new processes for managing and developing human connection,” Ms Collins said. 

“Flex@Landers was developed in response to ongoing feedback from our people, and we continue to conduct surveys and listen to our people so that we can adapt to evolving needs and circumstances.”

Mr Jackson said that post-pandemic, the discussions around hybrid working should be no different, and that working arrangements should be decided with employees as needed.

“It needs to be decided on a case-by-case basis. There are already flexibility clauses under the Fair Work Act; if someone has young children or they’re a carer, an employer still has to be flexible and listen to individual situations. An employer will at least have to listen and have a good commercial business case to say no,” he added.

“If a hybrid-working environment works for you, great. But a number of employers I’ve spoken to have said that while technologically people can work from home – and [they’ll] comply with government-mandated lockdowns if needed – having people physically in the office is good for business.

“I think there are some disadvantages, particularly in a law firm setting where training, mentoring and supervision are so important, you do lose that ability to have that informal chat with a colleague, whether that’s a junior lawyer seeking advice from a senior practitioner or vice versa, that spontaneity is lost.”

While paperwork can be done anywhere on the planet, businesses that depend upon ideas, creativity and spontaneity in particular could suffer as a result of employees exclusively working from home. Mr Jackson said that “whatever the new COVID-normal looks like”, employers need to figure out what will work best for their business going forward, whilst still listening and being open to the needs of their employees.

“An employer needs to think, if that’s going to be their policy, are they going to come across challenges,” he said.

“The worst thing to do is to introduce a policy then start backtracking the moment someone disagrees. If an employee disregards a reasonable directive, then it’s grounds for dismissal. So, are you ready to make it into a disciplinary thing?”

Whether employers are mandating full-time work in the office or not, Mr Jackson said that the key is for employers to be empathetic when doing so, especially as Australian cities go in and out of lockdown.

“People are genuinely anxious of [COVID-19] and employers need to be sympathetic and empathetic when working with that anxiety and explaining policies properly and [having honest discussions],” he said.

“An employer who can invest the time to explain and diffuse the anxiety surrounding it will not be displaced.”