**UPDATED 5 November 20**
The coronavirus pandemic forced businesses to swiftly adapt, with many adopting a primarily home based approach as an immediate response to lockdown measures.
Businesses began to emerge from lockdown following a statement by the Prime Minister indicating that the Government was looking for staff to return to work, so long as it was safe to do so, which for many organisations meant bringing employees back into the office. This meant a number of employees returned to the workplace having had to work from home for many months. Given the media attention on home working, it is anticipated that there will be a rise in requests from employees for their employers to adopt greater flexibility on working arrangements.
On 31st October the government announced a four week lockdown in England requesting a return to home working wherever possible. Businesses are likely to be reassessing their requirements with consideration being given to reducing office space and rental costs, which may result in more companies considering a home-based workforce for the long term.
As we continue to debate what the ‘new normal’ will look like post pandemic, it is worthwhile considering what the legal implications are for employers who may seek to require their staff to continue to work from home on a permanent basis going forward.
Contracts of employment
Many employees will be working under contracts of employment with no specific provision to work from home, and the place of work will most likely be stipulated as the employer’s premises. Unless there is a written term in the contract of employment permitting home working, employers would need the agreement of the employee in order to insist on homeworking, and imposing a unilateral change without agreement of those affected employees could constitute a breach of the employment contract.
However, employers are advised to check the wording of the place of work clause in their employment contracts as the wording adopted often builds in a degree of flexibility in favour of the employer, which can allow for a change in place of work on a temporary or perhaps even permanent basis.
If the contract contains wording allowing for flexibility and changes then the employer may not be in breach of the terms by enforcing a permanent switch to home working. Employers should note that it is still important for employers to act reasonably when implementing such a clause, otherwise they risk breaching mutual trust and confidence. This is a term implied by law into all employment contracts and breach of it is commonly used in constructive unfair dismissal claims.
Employers are well advised to ensure they communicate with staff in advance and where appropriate, consult as well as set aside reasonable time before implementing changes to place of work to allow employees time to prepare and adjust.
Where consultation is needed on employment contract changes
Where there is no flexibility to the place of work clause the employer will need to adopt a different approach. Employers will need to discuss the possibility of working from home with employees and consult with them in order to get their agreement to home working along with the necessary change to the terms of their contract.
Where employees refuse then employers should in the first instance, investigate the reasons as part of the consultation process. It may be that concerns can be addressed and/or alternatives considered so that the matter is resolved and disputes avoided.
Dealing with a refusal to agree to contract changes
If however, employees in this situation maintain a refusal and the employer can demonstrate that:
- there are good business reasons for switching to a home-working model,
- it has undertaken appropriate consultation and
- it has followed a fair procedure;
then it may be possible for an employer to dismiss.
In appropriate circumstances such dismissals can be considered fair with the employer relying on “Some Other Substantial Reason” as the potentially fair reason to dismiss, provided the employer can demonstrate that the dismissal was reasonable in all the circumstances.
Employers will need to make employees aware of the potential risk of dismissal but this should be a a last resort if there is a failure to agree and the alternatives have been considered. Such dismissals still bring with them the risk of unfair dismissal claims where affected employees have been employed for two years or more.
Employers who are faced with this scenario and are looking to dismiss should look to offer those refusing employees re-engagement on the new amended terms, including the homeworking provisions. Consideration should also be given to the numbers of employees affected: if this is 20 or more then collective consultation will need to be undertaken.
Where employers are looking to move to homeworking as a result of closing a workplace, perhaps in order to reduce costs and instead asking employees to work from home, this is likely to create a redundancy situation. Employees dismissed as a result may be entitled to a statutory redundancy payment (based on age, length of service and weekly pay) if they have two or more years of continuous service. However, specific advice should be sought as an employee will lose the right to a redundancy payment if they have unreasonably refused a suitable offer of alternative employment made before the employment ended, for example, the offer to the new terms with the included home working provision.
Duties towards employees when working from home
Where employees are working from home, employers should ensure that they are treated in the same manner as all other employees. Home based employees are entitled to the same rights and benefits as any employee working at the employer's premises.
An employer has both statutory and common law duties towards its employees and are responsible for an employee’s health and safety, “so far as is reasonably practicable”. In practice this means that employers should conduct a suitable risk assessment of all work activities carried out by homeworkers to identify any possible hazards. Employers will then need to consider these obligations to decide what measures need to put in place.
Confidentiality and data protection issues when working remotely
In addition to the health and safety aspects of home working, employers will need to consider how to safeguard business confidentiality and data protection requirements with increased chances of breaches taking place when outside of the employer’s premises.
Careful consideration is needed given the potential damage and loss that could be caused through unauthorised breaches, including significant fines that can be imposed by the Information Commissioners Office for breaches of data protection legislation - which has been strengthened since 2018.
It is also key for employers to ensure that they have suitable arrangements in place to help maintain contact with other staff, including office-based and home-workers, in order to limit issues that could arise through increased isolation of working remotely.
Where reasonable adjustments may be necessary
Whilst there is no legal obligation on an employer to provide the equipment necessary for homeworking, individual circumstances will also be relevant. For example, where a homeworker has a disability, then consideration should be given to whether provision of some equipment is required in order for the employer to comply with their duties under the Equality Act 2010 to make reasonable adjustments.
Many of the points discussed above can be dealt with in an effective homeworking policy which sets out the businesses’ approach to home working and relevant issues such as equipment, data security and confidentiality and health and safety. If a homeworking policy is already in place then it is worth ensuring this is reviewed annually to ensure that it does still meet the employer’s needs.
Right to requests for flexible working
It is still the case that employers are not required to agree home working requests from staff. There is no right to work from home and instead, employees with 26 week’s service have the right to request flexible working arrangements.
Whilst it is possible that as a result of the changes implemented as a result of the Coronavirus pandemic that going forward employers are likely to encounter an increased number of requests for flexible working, the underlying law and principles have not changed.
Employers who receive a statutory application for flexible working must consider it ‘in a reasonable manner’ within 3 months. In order to demonstrate that they have considered the request in a reasonable manner this will usually involve meeting with the employer before reaching a decision and offering a right of appeal.
An employer can refuse the request on one or more of eight permitted grounds, which are as follows:
- the burden of additional costs
- detrimental effect on ability to meet customer demand
- inability to re-organise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes to work; and
- planned structural changes
The grounds are fairly widely drafted such that employers have a wide margin of discretion, so long as they have acted on correct facts. As a result it can be difficult for an employee to succeed in a claim under the flexible working legislation at an Employment Tribunal.
Whether or not a claim succeeds will rest on whether the request has been considered in a reasonable manner, on ‘correct facts’ and that any refusal was due to the permitted grounds. However, employers should also beware of other claims that may relate to such a refusal commonly relating to indirect sex discrimination or constructive dismissal.
Employment Tribunal decisions post Covid-19
It remains to be seen how Employment Tribunals will approach claims that have arisen directly or indirectly as a result of the Coronavirus pandemic. With dismissals for redundancy for example, it is possible that Tribunals could expect employers to demonstrate they have considered options for flexible working as part of a wider redundancy exercise.