In response to the pandemic, restrictions have been implemented internationally, often including the requirement to work from home where possible. As the vaccination programme is underway and restrictions are cautiously reviewed, we consider what the future world of work may look like and whether home working is here to stay.
Do employees have a right to continue working from home after the lockdown restrictions have lifted?
The onset of the pandemic led to unprecedented numbers of people working from home on very short notice. The national lockdown and government guidance, necessitated an urgent need to enable working from home on a mass scale, with little thought to terms and conditions and formal flexible working requests. Looking ahead, the starting point for determining whether an employee has the right to continue working from home would be the contract of employment. Employers would need to review "place of work" clauses within contracts, including any variations to the contract which may have been made during the course of the pandemic. Assuming the contract has not been varied (whether explicitly or implied by actions) and the home working was only ever intended to be a temporary measure whilst government restrictions are in place, there will be no automatic right to continue with home working. It is important that employers have been clear over the home working arrangements and that terms and conditions have not inadvertently been changed during the course of the pandemic. However, employees could submit a flexible working request if they wish to vary their terms and conditions to allow home working on a part or full time basis. Where home working has worked well over the past year, employers and employees may be keen to find a suitable flexible arrangement going forwards. Employers should be mindful of potential discrimination issues when considering requests for flexible arrangements. For example, a request to work flexibly to manage childcare could result in an indirect discrimination claim if refused. The employer would need to be confident that they could justify the refusal as a proportionate means of achieving a legitimate aim. The key is to be open and transparent with the workforce, providing as much information as possible over the plans for the future way of working. Taking a collaborative approach will inevitably improve employee relations, reduce the likelihood of any claims and foster loyalty across the workforce.
Should employers have a policy dealing with home working and what are the key points?
Implementing a homeworking policy is advisable. Employers which already have a homeworking policy should ensure it is up-to-date in light of new issues coming out of the pandemic. Such policies can provide clear guidance on a variety of issues in one document. Each policy would be bespoke according to the requirements of the employer, however key themes which should be included are:
- The situations when homeworking will be appropriate (whether permanent or temporary).
- How to apply for homeworking, including what employees will need to be able to demonstrate in order to be successful with an application.
- What equipment will be needed and the employee's responsibilities with regard to the equipment.
- Clear guidance on data security and confidentiality. The potential for a breach of confidentiality or data protection is heightened when information is taken out of the work environment. Employees should be given clear direction on what is expected of them, including what action to take if there is a breach. The homeworking policy could link to policies on computer use, electronic communications and data security, all of which should also be updated in light of the increased amount of home working.
- Health and safety issues when working from home. The policy could outline the employee's health and safety responsibilities and what steps the employer will need to take to protect the employee's health and safety. Consideration should be given as to how to report health and safety concerns and whether the employee is covered under the employer's accident insurance.
Employers should also re-visit contracts of employment to ensure they are fit for purpose and allow the appropriate degree of flexibility. For example, the employer may need the employee to attend the office for training, appraisals, disciplinaries or for away days. The employer may also wish to utilise trial periods or to reserve the right to review the home working arrangement depending on performance. Any such amendments would amount to a change in terms and conditions, consent should be sought. Please see below for further information on changing terms and conditions.
Can an employer require employees to work entirely or predominantly from home? Is employee consent required? What are the main risks?
Again it is important to consider the terms set out in the contract of employment. If the place of work is office based, any requirement to work entirely or predominantly from home would probably amount to a change in terms and conditions. There are a number of ways to effect changes to contractual provisions and employers should take legal advice before embarking on a mass contract change exercise. The key elements of a successful change programme include consideration of the options, careful planning including for contingencies, effective communications and employee engagement. In many cases, it will be possible to secure the agreement of the vast majority of the workforce and to deal with those who do not agree on an individual basis, with dismissal being the very last resort. From unfair dismissal claims to the impact of significant change on mental health, employers will need to tread carefully.
Do employees have any entitlement to allowances/benefits if required to work from home?
Employers are not legally required to provide equipment for homeworking. It will be a question of what is agreed between the employer and the employee and what is set out in the contract of employment. Often employers will want the employee to use the employer's equipment so that they can ensure it is of the appropriate standard and to ensure that the system has appropriate anti-virus protection. Employees which are homeworkers may be able to claim a deduction against taxable income for certain travel costs and household expenses. In order for household expense to be tax deductible, the expense must be incurred wholly, exclusively and necessarily in the performance of the duties of employment. The rules are applied restrictively. The type of deduction which may be claimed include the additional cost of lighting, heating, metered cost of water and the unit costs of business telephone calls and internet connection. Where computer equipment is provided to the employee for business purposes, no income tax charge should arise.
What are the key trends in relation to home working?
The COVID-19 pandemic has accelerated a number of changes across all of society. In the workplace, we have already seen reappraisals of working practices with a shift towards an agile, flexible and homebased workforce. Employers and employees alike are exploring the concept that work is an activity we do, rather than a place we go to. The current government advice is to work from home if you can and so we have yet to see the true picture of how many people will remain at home as restrictions lift. Many businesses are taking the opportunity to engage with the workforce on future working practices and will undoubtedly be carrying out a business wide cost analysis on the potential savings resulting from reduced office space. The Chartered Institute of Personnel and Development (CIPD) research on homeworking highlights a positive experience for most employers, with 61% citing an improved work-life balance, 43% citing enhanced employee collaboration and 38% citing improved focus. Significantly, 28% of employers reported a boost in productivity and 37% said productivity levels had not changed. With the additional environmental benefits of reduced travel, the wider talent pool available and reduced overheads, homeworking is certainly going to feature in the future world of work in the UK. However, homeworking is not for everyone. Working from home can feel incredibly isolating, employees may feel unsupported and there have been reports of increased bullying and harassment, with diminished accountability due to the homeworking environment. Employers should create an easy mechanism to help monitor mental health and to listen to employees' concerns. Some employees will simply not want to work from home in the future and some may want the option to do so. Employers will need to tread carefully to ensure the talent pool is not reduced by inflexible working practices. Looking ahead, many employers will want to strike a balance between homeworking and office based work, making the most of a truly flexible and agile workforce.