The Future of Remote and Homeworking

As a result of the COVID-19 pandemic, homeworking has become the “new normal” for many businesses.  Whilst some employers (and the government) were keen to get back into offices whilst infection rates were low, other employers are considering the benefits of a more permanent move to remote/flexible working.

In this OnPoint, we discuss the key legal and practical issues to be borne in mind for employers who plan to operate remote/home working on a long term basis.

Contractual issues

Changing employees’ place of work to their home or another remote location may in practice not be problematic if employees are happy with the change. However, potential contractual issues still need to be borne in mind.

Pursuant to section 1 of the Employment Rights Act 1996 (ERA) an employee’s terms and conditions must detail his/her place of work. For most employers, existing contracts will specify the office the individual was required to attend (and may also include some flexibility to move the employee to another place of work). However, unless homeworking was specifically agreed, or contemplated, at the outset of employment, it is rare that a contract will specify that an individual will, or may be required to, work from home (although this should be checked on a case by case basis).

This has two key impacts. First, moving to home working would be a change to the particulars required by section 1 of ERA – and the employee must receive an update in writing of such a change. Second, and more importantly, in the absence of a specifically drafted variation clause permitting home working (which would be rare) a change to home working should ideally be effected with the individual’s specific consent. This is because, enforcing a change (particularly without any forewarning or consultation) could result in claims for breach of contract and/or constructive unfair dismissal. Furthermore, to seek to impose a change of contract which affects 20 or more employees – where the outcome will potentially be dismissal if the individual does not agree to such change – will also trigger the obligation collectively to consult with appropriate representatives of the affected employees.

If the move to home or remote working is favoured so that offices can be shut down, then it should be possible effectively to argue that the individual’s role is redundant in their place of work, that working from home is a suitable alternative and any dismissal which occurs if an individual refuses to work from home is ultimately fair. However, whether this is sustainable will depend on the particular individual’s circumstances, role and the organisation of the employer’s business.

It is therefore crucial that employees consider carefully their approach to home or remote working before implementation begins and, in particular, what they plan to do if employees are resistant to the plan.  Communication and the provision of appropriate support – in terms of equipment etc – may be crucial to ensuring a smooth transition.

Health and safety

All employers are obliged by law to ensure the health and safety of their workplaces (and employees). This obligation applies equally in respect of home or remote workers as employers have a duty to ensure that home working spaces are also appropriate from a health and safety point of view. Whilst this obligation may not have been a major focus for employers in the context of the speedy and large scale move to home working at the outset of lockdown, the health and safety ramifications of home or remote working should not be ignored as such arrangements become longer term and potentially permanent to avoid or mitigate the risk of claims (in particular for personal injury caused, for example, by inappropriate desk set ups).

A first step would be to ensure that employees complete desk assessment questionnaires to establish what equipment they have and whether any health issues are being caused or exacerbated by home working. Further information is available on the HSE’s website.

Employers will also need to consider whether they provide equipment to those working at home or remotely. As the law currently stands an employer need not usually provide or pay for home working equipment. However, this principle has not been tested in the courts since lockdown began – and employers should think carefully about whether or not to require employees to purchase their own equipment or to provide or at least subsidise the expense of acquiring additional equipment for the purposes of home or remote work. Appropriate IT, desk and seating equipment will all need consideration. Whatever approach is taken, employees should be treated consistently. That said, there are exceptional circumstances which justify providing additional support to certain employees – e.g. an employee who is pregnant or disabled for the purposes of the Equality Act.

Policy

Historically most policies will have anticipated that home working would be an exception, rather than the norm – accordingly, if an employer is considering moving to home working on a more permanent basis these policies will need to be revisited and amended. The key considerations to be borne in mind when revising (or drafting) home and remote working policies include:

• Who will be eligible for home working? Care should be taken to avoid disparate treatment which could amount to unlawful discrimination (by, for example, refusing to allow part time employees to work from home).
• How many hours or days per week will an employee be required or permitted to work from home and how much time must or can be spent in the workplace – in particular, are there specific events or activities which the individual must physically attend the office for.
• Whether the arrangements can be amended – and who this will affect, including the amount of notice to be given.  Again, care must be taken when implementing change to ensure that individual concerns (in particular childcare) do not give rise to viable discrimination claims.
• Which expenses can be claimed by home workers, and who will bear the cost of any equipment required (see above).
• Data protection and confidentiality issues which will also need to be addressed to ensure, in particular, that personal data (for the purposes of data protection legislation) is properly and lawfully processed and also that confidential information (be that of the business itself or clients) is kept secure.  Particular attention in this regard should be given to hard copy documentation that employees may have at home – where facilities securely to destroy such paperwork are unlikely to be available.

Social issues and productivity

Broader issues which should not be overlooked in the context of a wider and longer term move to home or remote working include the potential impact on working relationships within teams (and the workforce more broadly), stress and productivity. Whilst there can be no one size fits all approach to these issues, careful consideration should be given to ensuring teams maintain open lines of communication – on both a work and social basis. This will help to ensure efficiency and productivity, as well as seeking to ensure that homeworking does not have an adverse impact on employee’s overall mental health and well-being. A practical approach would be to engage with the workforce on these types of issues to generate solutions which employees are both comfortable and engaged with. Even if homeworking is to be the predominant working arrangement for an employer, it will still be important to facilitate face to face contact between staff on a relatively regular basis.

The issue of productivity, and workload, will also need to be carefully managed – which can be a challenge when employees are working remotely. Some employers may wish to put in place technology solutions to deal with these issues (such as logging in and activity monitors) whereas others may seek to rely on output to determine efficiency.