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THE QUESTION
I was in the final stages of interviewing for a hybrid job opportunity. HR said they called my references and one employer didn’t give great feedback (I resigned from that position and I think they still hold a grudge). Because of this, they said they want to have me in the office five days a week instead of three, as was stated in the job posting. This feels unfair. I wouldn’t have applied for the job if it wasn’t hybrid. Is there anything I can do for them to reinstate the hybrid schedule if I hadn’t signed a job contract yet?
THE FIRST ANSWER
Allyson Edwards, litigation partner, Nixon Wenger LLP, Vernon B.C.
Employers have been held liable by the courts for pre-contractual misstatements made during the hiring process. In such case, the misstatements were found to be untrue, inaccurate or misleading and the applicant proved that they reasonably relied on such statements to their detriment. Also, some employment standards legislation (such as the B.C. Employment Standards Act) holds employers liable for false representations about the conditions of employment made during the hiring process, however, not all provinces have similar legislation.
In your case, the key question from a legal standpoint will be: did you reasonably rely on information about the hybrid nature of the position to your detriment? For example, did you leave other employment or turn down other opportunities in order to pursue the employment in question? If you did and suffered a loss, you could theoretically have a claim against the employer, but proving reasonable reliance and related losses may be difficult.
From a practical standpoint, it would be worthwhile to have a direct conversation with the employer about the hybrid schedule and ask what the specific concerns are. There may be a way to address these upfront. You can also relay that the hybrid schedule was something that you relied upon in making your application (and if you suffered any losses because of that reliance, you should certainly mention this as well).
A savvy employer will be attuned to words like “I relied on” and should be willing to engage in some level of discussion.
If the original hybrid schedule is not re-tabled, you may wish to propose a timeline whereby, after working five days per week in the office for a certain period, there is then a trial period where a hybrid schedule is implemented.
An employer who digs in and refuses to consider your needs may not be an employer that you want to work for at all.
THE SECOND ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
The answer depends on what else happened until that point. You may have already entered into an employment agreement without knowing it. An employment contract is created when there is a “meeting of the minds” between the parties on the essential terms. This agreement can be reached verbally.
Also, an employment contract can be established by a series of emails that build on each other and show a mutual understanding of the working terms, such as your pay, start day and hybrid work status. Unless you were explicitly told otherwise, no rule states that the only way a job contract is created is when the employee signs on the dotted line. Recently, a Saskatchewan court held that a contract was created simply by one party’s use of a simple thumbs-up emoticon.
If you are still interested in the job, you may want to have a more detailed conversation with the company about how you chose to apply based on the advertised hybrid working option. It would be helpful to understand whether the negative reference was the only reason for new in-office expectations or if there were other operational reasons.
If your need for a hybrid working arrangement is based on a protected ground under the human rights code, such as a disability or your family status, the company may be obligated to extend the hybrid working terms to you so long as it would be reasonable and not cause the company undue hardship.
It is best to consult with an employment lawyer to review your unique facts in detail and determine what, if anything, can be done to reinstate the hybrid schedule.
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