In March 2020’s first lockdown, the government called upon business to enable employees to work from home. In the following months, guidance changed a number of times. This article overviews the current legal framework and key considerations for employers and employees.
Employees don’t have an absolute legal right to work at home. However, an employer must carefully consider requests to do so. Requests may be made by employees who have applied for flexible working; or where a sex or disability discrimination claim is possible. The employer doesn’t have to accept a request but must justify a refusal with a business reason.
Since 2014 there has been a legal right for qualifying employees to request flexible working. In order to qualify the employee must have 26 weeks’ continuous employment by the date of the request. The statutory scheme includes requests to change number of hours, times/location of work, or a combination of these.
The scheme is supported by two ACAS documents:
• The Statutory Code of Practice, Handling in a reasonable manner requests to work flexibly
• The right to request flexible working: an Acas guide
Employment tribunals must take the ACAS Code of Practice into account when dealing with claims regarding the scheme. ACAS has also produced a homeworking guide for both employers and employees. This covers aspects such as having a homeworking policy, legal issues, case studies and a checklist.
Other legal protections
Employees have further statutory protections under the Equality Act 2010 which employers need to bear in mind when dealing with requests for flexible working. For example, a male employee makes a flexible work request to vary working hours to accommodate childcare. A female employee makes the same or very similar request. If each request is not treated equally the employer could be vulnerable to a claim for direct sex discrimination. Such a claim could be made by either the male or the female employee. Other discrimination claims relating to a flexible working request are possible on grounds of religion and disability.
The Employment Rights Act 1996 also provides that employees may resign in certain circumstances due to an employer’s conduct. Such circumstances may arise in the way that an employer deals with the flexible working request. The employee may be entitled to make a claim for constructive unfair dismissal. That claim could also be made together with a discrimination claim depending upon the circumstances.
Some employees required to work from home during lockdown may like to continue that for part/all of their working time when restrictions are lifted. If so, there are a number of additional considerations for the employer, as follows:
Health and Safety
Employers are legally responsible for their employees’ welfare, health and safety so far as is reasonably practicable. This would include a risk assessment of homeworkers to identify hazards and assess the degree of risk and decide what measures need to be put in place, if any.
Issues to be addressed include:
- stress – how staff are to be supervised and integrated into a team without straying into the surveillance,
- equipment – the provision of any additional equipment e.g. enhanced lighting, a supportive office chair, a work laptop,
- first aid – homeworking is likely to be low risk but may still require access to a basic first aid kit, and
- accidents – is there an appropriate reporting procedure.
Employers will need to ensure continued compliance with data protection laws. Appropriate measures must be in place to protect confidential information and personal data. Policies will need to be reviewed and updated as appropriate. Adequate information security measures should be in place, including password protection and appropriate training for staff.
Contract terms and conditions may need to be changed to reflect a change in the normal place of work. Employers may need to review contractual terms relating to: place of work, hours, salary and benefits, expenses, illness, confidentiality, equipment and monitoring of communications and systems, discipline and grievance.
It’s also possible that an employer may need to consider the right to enter an employee’s home for specific purposes such as maintaining equipment, for H&S or to recover equipment on termination. In addition, trial periods relating to homeworking should be considered, especially if there are concerns about how it will work. Changing terms and conditions is not always straightforward and may expose employers to unfair or constructive dismissal claims. Employers should take advice before imposing changes unilaterally.
Reporting and Appraisals
Appraisals should continue although as homeworking employees may be required to work/perform differently appraisal criteria may need to be modified.
A suitable reporting and appraisal system should be in place with opportunities for reviews of work, performance and expectations. An effective way of communicating issues or difficulties and the same opportunities for promotion should also be available.
Throughout the past year as a result of coronavirus, the number of employees working from home increased dramatically. Many employees worked efficiently and effectively this way. Benefits of home/flexible working for employers and employees can include: reduced overheads, increased productivity, motivation, team flexibility & staff retention. However, this has to be balanced with potential drawbacks for less experienced employees and those needing greater support.
It is likely that, although many will return to the workplace, homeworking to some extent at least is here to stay. It will certainly not be as easy as it was for employers to turn down requests. This is likely a growing area for disputes and claims and employers will need to have considered reasons for turning down flexible work requests.
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