Since the start of the pandemic, home working has become very common, and with the easing of restrictions, employers are either planning to leave people at home, or they want to bring staff back but staff want to stay at home.
Those workers out there with multiple children (as I have) can’t wait to get back to the office.
So, what are the issues?
About the expert – Darren Sherborne, head of employment at Sherbornes Solicitors Ltd
With a long career in employment law stemming back to working for trade unions in 1991, Darren Sherborne is regarded as the most well-known employment lawyer in Gloucestershire and is recognised for a practical, down to earth approach.
Since embarking on his career, Darren has achieved a master’s degree in industrial relations law, was appointed as an arbitrator for ACAS, has been a contributing author for numerous legal practitioner books and appears regularly as a commentator in the press and on the radio, as well as being instructed in ground-breaking legal cases.
So, what are the issues with home working?
The issues can be split into two categories. Those who wish to force employees to work at home, and those that want them back in the workplace.
Imposing home working
The first category of home working is those employers who wish to leave their employees working from home. Naturally, this won’t suit everyone. Many employees don’t have suitable working spaces such as a spare bedroom or study and if small children are in the house, it can be quite counterproductive.
The employer has no general right to force working from home, where the contractual place of work is the business premises. During a sudden national emergency, it might be possible to argue that it was necessary, but the contractual workplace will normally prevail long term.
The most obvious option for an employer who wishes to move to home working is to consult with staff and if no agreement can be made, follow the route of making the workplace roles redundant and offering re-employment into new home-based roles. A statutory trial period for staff would probably be required during which time the employee could opt back for redundancy if they preferred.
It would be wise for an employer to look closely at any personal circumstances which are brought up by staff such as children being at home which might affect productivity.
What about employees seeking home working?
A far more common experience for employers, is staff now requesting home working, or a flexible combination of home and office working. Some staff find that working from home has suited them.
Where an employer is not minded to agree such a request, the employer should consider carefully why they are against continued home working, especially if it has worked during the pandemic without issue.
There is sometimes a tendency to just say ‘no’, for fear of setting a precedent. This fear is on the whole groundless. If an employer needs a certain amount of feet on the ground, while others could work from home, the fact that the employer has said ‘yes’ to one, does not mean that they cannot say ‘no’ to another. In fact, a good reason to say ‘no’ might be that they have said ‘yes’ too many times already.
Any employee with 26 weeks service or more has the right to request flexible working. This is not the same as having the right to do flexible working. It is simply the right to ask for it, and the employer is entitled to say ‘no’. However, the employer MUST consider the request, and then must say ‘no’ only on one of the specified grounds set out in law.
What do employers need to think about when home working is permitted?
Once home working for any amount of time is established, the employer has multiple issues to consider. A brief checklist is set out below.
Contracts of employment. The contract must set out certain detail and be kept up to date. The obvious change that will be required is Principal Place of Work. It may be wise to cover this in a policy as well. The employer may have reservations about, for example, a remote worker taking their laptop to the Costa del Sol for the summer and developing their tan while working. If this would an issue, the employer should be clear on the point.
Expenses policies may also need to be updated to be clear about what will be allowable and what will not. Equipment, office furniture, broadband and stationary may be included, electricity and heating may not. It is very much something to be agreed between the parties. Also, an employer may want to stipulate that home working is for four days a week with one day a week in the office, to avoid having to pay travel expense for staff attending the office for meetings.
Working hours need to be clear. Not only should the employer be clear about what they expect, but also how it will be monitored. In addition, some thought should be given to breaks, and ensuring that staff know what they must take and that it is their responsibility to ensure they do so.
Confidentiality not associated with computers, but with paper files will also need to be emphasised. Staff will need to be clear whether their workspace must be secure and confidential from other members of the household in shared accommodation, or from any other form of breach.
A greater confidentiality issue is the use of IT equipment. Clear policies will need to be developed not only to protect sensitive data, but also to comply with GDPR generally. The GDPR risk assessment will need to be updated to reflect measures introduced to cater for home working.
Business contacts and the use of personal devices. Home working will increase the risk that work is done on the employee’s own devices. In some roles, this will involve the employee having all of the customer information of any value, buying patterns, prices, discounts etc on their own equipment leaving the employer with no way of retrieving it should the employment end. This can be covered with clear policies but they need to be thought about.
Health and Safety generally may be a concern for some. Risk assessments remain necessary for all or any workplace, but an element of common sense is permissible. For example, with the consent of the employee, the risk assessment can be conducted over a video call and signed off by the employee afterwards.
What is your biggest tip for employers dealing with home working issues?
The best advice for employers is to keep an open mind, and document the reasons that any decisions are made. For those employers who have successfully allowed homeworking throughout last year, but are against letting it continue, I would issue a word of caution. That being that employees now seek a ‘new normal’, and recruitment and retention of talent may in future require a degree of flexibility.
