The pandemic has seen large sections of the UK economy embrace flexible and modern methods of working. As many offices around the country closed last March, millions of workers were sent home with their laptops and have since had to adapt to homeworking, with its unreliable broadband connections, questionable video call background effects and makeshift living room offices.
As more and more businesses start to reopen their premises, many are facing the fact that some of their workforce enjoy and benefit from homeworking. Many parents appreciate the increased flexibility it gives them to look after their children, whilst others simply like avoiding a time-consuming and expensive daily commute. There are advantages for businesses too, who may be seeing a happier and more productive workforce or who may stand to make savings by downsizing to a smaller premise.
There can also be disadvantages to a primarily home-based workforce. Employers may have noticed a drop in efficiency if teams are not communicating and working as efficiently as they otherwise would being in a shared space together. In addition, employers need to be aware of the possible health and safety considerations of homeworking and their duty of care to staff.
Can we ask staff to return to the office?
Assuming this is the contracted place of work for staff and as long as government guidance on workplace safety measures has been followed, staff can be required to return.
However, there may be other factors to consider first. For example, if you have agreed to an employee working from home permanently, you will need to obtain the individual’s consent to cancel that arrangement and move them back to the office (unless you built in a contractual right to vary that arrangement without consent).
Further, if an individual is refusing to return to the office, an employer should investigate the reason for this. If the employee does not have a sensible reason for refusing to return, it may be necessary to consider disciplinary action.
An employee may respond to your decision to return staff to the office by requesting to remain working from home (see below for details).
What if an employee asks to continue working from home?
There are clear benefits to homeworking for many people. Therefore, an employer should not be surprised if some of their staff submit requests to permanently work from home. Other employees may wish to have a more flexible week made up of both office and home-based working.
If so, this may well amount to a formal flexible working request (subject to specific qualifying criteria for this). There are some key points around the laws of flexible working requests for employers to remember:
- Requests must be dealt with in a reasonable manner
- Requests must be responded to within three months
- Requests must only be refused for specific business reasons (which are listed in the regulations) and must not be refused for discriminatory reasons
A homeworking policy is a useful way of documenting an employer’s stance on the issues covered in this article.
Are there any risks to rejecting a flexible working request?
There are three main issues to be aware of:
- If the employer has breached flexible working laws, the Employment Tribunal can order that the request must be reconsidered and/or order up to eight weeks’ pay as compensation.
- If the employee has at least two years’ service, they may be entitled to resign and bring a claim for constructive dismissal if there has been a fundamental breach of their contract of employment.
- Depending on the circumstances of the rejection, an employee may claim that their request was refused for discriminatory reasons. This could include direct discrimination (eg, the request was rejected because of the employee’s protected characteristic, such as their disability or their sex), but could also involve a range of more complicated claims including indirect discrimination (should a protected group be placed at a particular disadvantage by the employer’s stance on homeworking). In the case of an employee with a disability, refusing their homeworking request may be a breach of the employer’s obligation to make reasonable adjustments for disabled staff.
What legal issues must employers consider for homeworkers?
Homeworkers enjoy the same rights and legal protections as office-based workers. Employers also need to remember that they owe them the same duty of care.
Therefore, from a health and safety perspective, an effective risk assessment should be carried out for each employee working from home. The risk assessment should, amongst other things, consider the suitability of the employee’s work location at home, the equipment they need to safely do their job, their work patterns and how their rest breaks will be accommodated.
Homeworkers also need to be sufficiently trained in company procedures. This could be on issues such as IT security protocols or emergency procedures in case of accidents in the home or, in the case of line managers, on how to ensure efficient supervision and contact with their team or how to spot signs of stress and exhaustion in homeworkers.
As employers naturally have less visibility over homeworking employees, some companies are using productivity monitoring software as part of their homeworking arrangements. This may be seen as useful software by some businesses. However, they must be careful that they do not breach the data protection rights of homeworking employees with their monitoring. They will need to ensure that they have identified a qualifying legitimate interest for the monitoring and that they have documented this in their data protection policies and privacy notice. If an employer cannot identify a legitimate interest for gathering and processing such data, they risk infringing the employee’s privacy rights and/or breaching their duties to employees, which could result in employees making reports to the Information Commissioner’s Office or invite Employment Tribunal claims such as constructive dismissal.
How do we make a permanent switch to homeworking?
If an employer recognises that their business model would benefit from having their staff either permanently working from home or flexibly working between home and an office, careful thought should be given as to how to approach this process.
From a legal perspective, changing an employee’s place of work is typically a change to their terms and conditions of employment and therefore requires their consent (though this will depend on the particular wording in the contract of employment). Therefore, instead of simply imposing the change and risking a breach to the contract of employment, employers should plan an announcement to staff and prepare themselves for consultation with any employees that ask questions or oppose the proposals.
There will be other practical considerations to keep in mind, including how employees will work and communicate effectively from home, how employees will be supported at home to ensure that issues can be resolved (ranging from stress and mental health issues to IT problems). How the new arrangements will be reviewed will need to be planned and whether employee feedback and engagement will be sought to flush out any concerns.
Author: Patrick Byrne, Associate (Employment Law), Myerson Solicitors LLP, Altrincham
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. It is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered above, please speak to Myerson Solicitors LLP directly