Post-pandemic, working from home – both as full-time and hybrid working arrangement arrangements – remains prevalent across the economy. This shift towards a more flexible way of working brings both risks and opportunities for employers, who must ensure they meet their duties towards remote workers.
In addition to the legal compliance considerations of remote working, employers should also be aware of the expectation among many workers to offer flexible working arrangements, such as working from home. This has become even more critical in a highly competitive job market. Other benefits for your business of homeworking can include lowering overhead costs, freeing up office space, as well as potentially improving employee engagement and even increasing productivity.
In this guide for employers, we explain the current position on the right to work from home, how to handle flexible working requests and the pitfalls to avoid if you are looking to refuse a request to work from home.
Is there a right to work from home?
Under current laws, there is no statutory or automatic legal entitlement for an employee to work from home, unless the worker’s contract of employment specifically states they are entitled to work from home.
Employees with at least 26 weeks’ continuous service with the same employer do, however, have the right to make a statutory flexible working request within a 12-month period.
A flexible working request is a request to change an employee’s working arrangements to better suit their needs, such as working reduced hours, different start and finish times, job sharing or working from home.
Homeworking is where an employee is allowed to undertake their daily contractual duties from home on either a temporary or permanent basis. They will typically still work the same hours for the same pay, but will not be required to come into work during those times where remote working has been agreed.
How should a remote working request be handled?
While an employee does not have the automatic right to work from home, a statutory request to do so must be considered by the employer in a reasonable manner and should only be refused if there is a good business reason for so doing, taking into account the economic and operational needs of the organisation and as long as the employer can show that this would adversely affect their business.
Fair grounds for refusal include:
- The arrangement is cost-prohibitive
- It will not be possible to rearrange the work among existing staff
- The employer cannot recruit more staff
- Negative impact on quality
- Negative impact on the organisation’s ability to meet customer demand
- Negative impact on performance
- Not enough work available when the employee has requested to work
- Due to planned changes to the business which would not accommodate the arrangement
Handling flexible working requests in a reasonable manner should include assessing the advantages and disadvantages of the application for remote working, discussing the request directly with the employee and offering an appeals process if the request is refused.
Prior to the coronavirus outbreak, many employers would easily be able to provide sound business reasons for any refusal of a remote working request. This could include, for example, the financial cost of providing the necessary IT equipment, the possibility of cyber-security or data protection breaches, as well as various other reasons as to why their business would be adversely affected. However, since the widespread adoption of remote working in response to the mandatory working from home rules during the pandemic, employers generally need to exercise caution if looking to justify a decision to deny an employee the right to work from home where an employee can feasibly undertake their job role from home.
What are an employer’s responsibilities towards remote workers?
By law, all employers are under a duty of care to ensure the health, safety and wellbeing of their employees, including when an employee works from home.
This means that having granted a remote working request, or having agreed with various members of staff that they will work from home for the time being, you will need to carry out some form of questionnaire-based risk assessment of the workspace available within the employee’s home environment.
You will be responsible for ensuring that employees have access to the right equipment and technology needed to conduct their role from home, together with any necessary training and support to work remotely.
You must also maintain regular contact with employees and take any necessary steps to safeguard their health and wellbeing, including any mental health issues that may arise as a result of stress, anxiety or feelings of isolation.
In this way, you can maximise the benefits of remote working while minimising the risk of any problems arising as a result of employee’s being asked, or allowed, to undertake their daily work duties from home.
Working from home policy
Since the pandemic, it has become best practice for employers to adopt a specific working from home policy, setting out the basis upon which a request for remote working can be made, who is eligible and how this will be considered, you can help to encourage this type of flexible working arrangement for your workforce.
With clear written guidance as to what is expected of an employee when working from home and how remote working will work in practice, you will also get the most of any remote working arrangements for your business.
While templates for creating a remote working policy are available, it is advisable to devise a policy that suits the specific needs of your organisation to optimise its effectiveness and impact. As a minimum, it should cover key aspects including eligibility criteria and how to apply. Even though any decision to allow remote working does not need to be implemented across your entire workforce, you should be clear about the basis upon which employees are eligible to work from home, ensuring that this does not discriminate against certain individuals or groups of individuals.
You should also establish a clear remote working agreement, setting out how you expect employees to perform while working remotely and exactly what they are required to do on a daily basis. This should include hours of work and working time rest breaks, data security and data protection issues, ways of keeping in touch, points of contact for any problems, and how an employee’s performance will be managed and measured during this period.
Is the Right to Work from Home likely to be enshrined in law?
It remains to be seen whether there will be any amendments to the existing flexible working legislation to tip the balance more in favour of workers, for example, by removing the qualifying service requirement, limiting an employers’ grounds of refusal or increasing the level of any compensation award.
Regardless of any potential change in legislation, we have seen a shift towards flexible working as employers look to meet the expectations of workers for greater flexibility, including home working.
Need assistance?
DavidsonMorris’ employment lawyers can help with all aspects of workforce management including flexible working requests and shifts in working patterns and arrangements. Working closely with our specialists in HR, we provide comprehensive advice on the options open to you as an employer and offer practical support to help you maximise the commercial benefit of your decision while minimising legal risk.
Through our Triple A service, employers gain unlimited access to expert employment law advice for a fixed-fee. For help and advice, or for more information about Triple A, speak to our experts.
Right to Work from Home FAQs
Do I have a legal right to work from home?
There is currently no statutory right to work from home, but workers may have this right under the terms of their employment contract. Employees can make a request for flexible working after 26 weeks of employment.
Can an employer refuse a request to work from home?
Yes, an employer can refuse a request for flexible working, such as homeworking, if they have reasonably considered the request and can show good reason for the refusal.
Can a company allow some employees to work from home and not others?
Yes, employers can allow some to work from home while refusing others, provided they have handled each request reasonably and have good reason for any refusal.
Last updated: 16 September 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals