Jonathan Carr Gemma Taylor August 17 2022 Climate emergency – the missing factor in remote working requests? Lewis Silkin LLP | Employment & Immigration - United Kingdom Jonathan Carr, Gemma Taylor Employment & Immigration IntroductionCarbon emissionsCommentIntroductionOne of the legacies of the covid-19 pandemic is that remote working has become normal. Workers in the so-called "knowledge economy" are now commonly working remotely on a hybrid or fully remote basis, sometimes moving out of cities in search of a new lifestyle.Employees are increasingly asking to work remotely from overseas locations, either for a few weeks at the end of a holiday or for a longer period, perhaps even under a digital nomad visa. At the same time, environmental issues are becoming more important to businesses.The need to address climate change by reducing our carbon emissions is urgent. Some employers are beginning to calculate their carbon emissions, and, in time, more employers are expected to focus on slashing them.What happens if these two trends – remote working and carbon reduction – start to compete with each other?Carbon emissionsWhen deciding whether to grant an employee's remote-working request, employers tend to focus mainly on feasibility: Will the request impact the employee's performance? Can service levels be maintained? Does the employee have a suitable working space and facilities to work remotely? Will there be immigration, tax, employment law or social security issues if the employee wants to work remotely from overseas?The climate, however, does not generally come into the equation. Employers do not tend to evaluate the environmental impact of requests to work remotely or assume it to be neutral if not beneficial compared with office commuting. It is hard to do so anyway, but maybe the climate should be more of a factor in decisions about flexible working.Some remote-working requests, if granted, may lead to reduced carbon emissions. The obvious example relates to the emissions generated by the employee's commute. They come within the employer's "scope three" (indirect) carbon emissions, and there is technical guidance on how to quantify them. Employees can save emissions from commuting if they are working from home or working a reduced working week.Even greater carbon savings can be achieved if the office shrinks or closes as employees work from home. The campaign for a four-day week has argued that shifting to a four-day working week without loss of pay could shrink the United Kingdom's carbon footprint by more than the entire carbon footprint of Switzerland.Some arrangements might even lead to more specific environmental benefits where, for example, an employee is planning to move to a more sustainable home and way of life and the remote-working arrangement is part of that overall plan.By contrast, some remote-working arrangements may increase carbon emissions. In general terms, homeworking results in a smaller carbon footprint, but the picture is much more complicated on an individual level.Depending upon factors such as their domestic energy source and consumption, the energy efficiency of the office and the time of year, employees may increase their employer's scope three emissions by working from home. That is why, for example, it would be better if city-dwelling German workers came to the office during winter and their Spanish counterparts did so in summer.The picture becomes even more complicated when looking at requests to work remotely from an overseas location. For example, a round trip to Barbados (one of the first countries to launch a digital nomad visa) involves nearly 800 kilograms of carbon dioxide, and that is before taking into account any emissions caused by air conditioning in the building where the employee plans to work.CommentArguably, employers should perhaps be more aware of the specific climate impact of any remote-working request. But what, then, about the legal position? Can an employer legally take climate impact into account when weighing up the merits of a remote-working request?If an employee asks for remote working under the statutory "right to request flexible working" regime, employers can only say no based on one of eight specific grounds such as additional cost or impact on performance. None of the eight grounds obviously relates to the environment. That is not to say that employers cannot take the environment into account, however.First, it is arguable that concepts such as "cost" or "performance" can stretch to include environmental costs or performance. Second, the penalties for infringing the flexible-working regime are low (up to eight weeks' pay). Third, many requests to work remotely are made outside of the statutory flexible working framework, especially requests to work temporarily overseas.Policies that involve rejecting remote requests on environmental grounds might indirectly discriminate against certain protected groups (it is arguable that overseas nationals are more likely to ask to work remotely from overseas) but may be justified – and there is no reason why the environment could not be part of that objective justification. For employers that are prepared to be bold, therefore, there is scope for taking greater account of environmental factors when weighing up remote-working requests.That said, a greater focus on the environmental impact of remote-working requests has the potential to cause conflict and resentment. Various studies show that employees in general are demanding greater action on the climate emergency, but many are also relishing the new remote-working possibilities that the pandemic has made possible. Are employees ready for climate-motivated pushback on their remote-working requests or will they strongly resist that?In many sectors, there is a recognised shortage of talent as a result of Brexit, covid-19 and other factors, so some employers will be wary of pushing back too hard. This perhaps is where compromises may have a role to play – for example, an employee could be allowed to work remotely for parts of the year or on the condition that they power their home with sustainable or green energy?If businesses start evaluating the environmental impact of remote-working requests, will this cause disgruntled employees to ask questions about other scope three emissions (eg, their employer's approach to business flights or the commuting habits of the senior management team)?Some employers may struggle with the resources and expertise to measure remote-working emissions impacts, although tools are increasingly available. Perhaps employers will be best able to weather these storms if they have a clear and cohesive environmental strategy.For now, greater awareness and discussions about the environmental impact of remote working should allow for more informed requests and decisions to be made. In time, it can be expected that more employers will take a policy stance that puts the environment into the equation where it was missing before.For further information on this topic please contact Jonathan Carr or Gemma Taylor at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.A previous version of this article was published on International Employment Lawyer.