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Right to Work from Home: Perk or New Norm?

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Following the coronavirus outbreak and UK lockdown, working from home has become 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.

Is there a right to work from home?

Under current laws, there is no automatic legal entitlement for an employee to work from home. However, employees with at least 26 weeks’ continuous service with the same employer do 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.

Even though an employee does not have the automatic right to work from home, a 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.

Examples of handling requests in a reasonable manner include assessing the advantages and disadvantages of the application for remote working, discussing the request directly with the employee and offering an appeals process.

 

How should a remote working request be handled?

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, in the context of the current pandemic and the ongoing official advice from the government, all employers must exercise extreme caution if they are looking to justify any decision to deny an employee the right to work from home.

Essentially, this means that employers should not only be agreeing to any flexible work request to work remotely where an employee can feasibly undertake their job role from home, they should be positively encouraging employees to work remotely where at all possible.

Even though any decision to allow remote working will depend upon the economic and operational needs of your business, it is important to bear in mind that working from home will help to keep your workforce safe.

There are also various benefits for your business, including lowering overhead costs, freeing up office space, as well as potentially improving employee engagement and even increasing productivity.

Risks of refusing a remote working request 

In the context of the current coronavirus crisis, many employees will still be far too fearful of physically returning to the workplace, especially where they feel at heightened risk of severe illness, they fear exposing vulnerable individuals in their household to the virus or their commute to work involves public transport.

This may mean that any unreasonable refusal to allow a remote working request could result in forced resignations and even claims for constructive dismissal.

It is important to bear in mind that the law affords special protection to employees who are dismissed, including constructive dismissal, for refusing to return to work in circumstances where they have drawn their employer’s attention to health and safety issues about their workplace. There is also no minimum period of qualifying service for automatically unfair dismissal, or any other unlawful detriment, and compensation is uncapped.

A claim for automatically unfair dismissal could easily arise, for example, where an employee has raised concerns with you about a lack of social distancing or other safety measures within the workplace. The employee would only need to show that their belief of serious and imminent danger was reasonable, and that their refusal to return to work was to protect themselves or others from danger.

Where a flexible working request has been unreasonably refused, ignored or mishandled by an employer, an employee can also make a complaint to an employment tribunal. If a tribunal finds that any refusal was not justified, it will make a declaration to that effect and may also order you to reconsider your request and pay the employee compensation of up to eight weeks’ pay.

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.

Work from home policy 

Prior to the current pandemic, many employers would not consider putting in place any specific written policy or procedures in respect of any right to work from home, especially where remote working was not usually permitted or common practice within their particular company or organisation.

Given the widespread adoption of homeworking since the pandemic, this is now likely to change for many businesses. By 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 staff.

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.

There is no standard template for creating a remote working policy, although it will need to cover various 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?

The current government guidance is that all employees, where at all possible, should still be working from home. That said, under the existing statutory regime a request to work remotely could still be reasonably refused for various reasons, as long as the employer can show that this would adversely affect their business.

It therefore follows that the government may, at some point, seek to amend the existing flexible working legislation to make this more employee-friendly, for example, by removing the qualifying service requirement, limiting an employers’ grounds of refusal or increasing the level of any compensation award.

However, despite the cultural shift within UK businesses following the outbreak of coronavirus, where many employers now view remote working more favourably, it is highly unlikely that the government would introduce an absolute unqualified right. The economic and operational difficulties that this would cause to thousands of businesses across the UK would be unfathomable.

Even so, it remains important for all employers to carefully consider all flexible working requests and to bear in mind the benefits of remote working, especially when it comes to caretaking the heath and safety of your workforce.

 

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. For help and advice, speak to our experts.

 

Right to Work from Home FAQs

Can an employee be dismissed if they cannot work from home?

Dismissing an employee because they cannot work from home will not usually be regarded as a fair reason for dismissal, where all workers who cannot work from home should travel to work if their workplace is open. Equally, an employee should not be dismissed for refusing to go into work where they have a reasonable belief that they will be in serious and imminent danger in so doing.

What are the ‘Covid-Secure’ safety guidelines workplaces put in place?

The Covid-19 Secure safety guidelines are the latest measures advised by the UK government for workplaces to put in place. Employers must ensure they are following the latest guidelines, as they are subject to review and amendment in line with changes in public health guidance.

Last updated: 20 June 2020

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