Remote working, also known as ‘homeworking’, is a valued benefit for many employees and valuable option for employers for many reasons.
Of current interest with the COVID-19 pandemic, homeworking is a tool available to many employers to continue to operate when it is impractical, unwise or impossible to have employees in a central office or site location.
Equally, home-working enables workers to continue to contribute to their employer’s business when attending work in a traditional manner is not feasible or possible for health or other reasons, such as the requirement to self-isolate.
This note is intended to address the practical legal issues relating to the obligations of an employer related to home working with top tips and Frequently Asked Questions. It is, of course, the case that home working should be addressed on a case by case basis by the employer. Further guidance and advice on the specific topics raised here are available from James Wilkes.
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Top Tip – agree on terms at the outset! Consideration should be given to the following:
- a) Hours
- b) Performance measures
- c) Trial period or temporary arrangements
The Legal Issues
There are several legal issues raised with homeworking which are ideally addressed in both a home working policy and the employer’s flexible working policy. These documents should be readily available to all workers.
The core legal issues are:
- Health and safety – the working environment at home
- Parity of approach to the handling of requests for home working
- Supervision and support for the employee
- Confidentiality and Data Security
Health and Safety
Employers have a duty of care for all of their employees and the requirements of all health and safety legislation apply to homeworkers.
It is the employer’s responsibility to conduct a risk assessment to check whether the proposed home workplace’s ventilation, temperature, lighting, space, chair, desk and computer, or any other kind of work-station, and floor are suitable for the tasks the homeworker will be asked to do.
The risk assessment must be prepared with the homeworkers anticipated tasks in mind. The risk assessment should be signed by the employee and employer and placed on the employee’s HR file.
The employer is responsible for the equipment it supplies, but it is the responsibility of the employee to rectify any flaws in the home highlighted by the assessment.
Once the home workplace is passed as safe, it is the responsibility of the homeworker to keep it that way and take reasonable care of their health and safety. However, they should tell the employer if any precautions turn out to be inadequate and or there is a change in the home workspace.
Flexible working requests
As of 30 June 2014, all employees who have 26 weeks continuous service are entitled to request to work flexibly – this may be to do with the total hours, times or place of work.
Conversely, an employer can reject a request on specific grounds relating to the needs of the business; the employer must, however, be able to explain objectively why an employee must work at its premises for one of the eight possible reasons set out in the law:
- The burden of additional costs.
- Detrimental effect on the ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on output quality.
- Detrimental impact on employee performance.
- Insufficiency of work during the periods the employee proposes to work.
- Planned structural changes.
Supervision and Support
Processes for supervision and support of home workers are important and should be agreed at the outset of the employee working from home.
Homeworkers should be subject to the same supervision and appraisals as other workers. Informal day to day appraisal with managers is essential and requires managers to be diligent in picking up on any signs of stress, or difficulty the home worker may be dealing with such that appropriate action may be taken to address the issue early on.
Top Tip a homeworker complaining of stress should be asked to undertake a stress risk assessment to see what can be done. A homeworker revealing that work is affecting their health should be considered a candidate for an occupational health referral in addition to the stress risk assessment.
Homeworkers frequently are concerned that managers or colleagues suspect that they work less (or less effectively) than workplace-based colleagues. The ACAS guidance is that a suitable reporting and appraisal system should be agreed at the outset, building in sufficient opportunity for reviews of work progress, involvement in projects, levels of performance, expectations and any difficulties that either the homeworker or their manager consider should be addressed.
Confidentially and Data Security
The obligations of GDPR upon the employer and the employee, including the employer’s own confidentiality and data security provisions, do not change on account of the location of the work being carried out. Consideration should be given to reminding the employee of this and incorporating this into the risk assessment and equipment provided to the homeworker.
Can an employer force an employee to work from home? Yes, but only if there is a contractual right to do so, otherwise it must be by consent of both the employee and employer.
Can an employee force their employer to let them work from home? No. An employee is entitled to request flexible working to which the employer must respond appropriately and with justification if rejecting the request (see above).
Can an employer require a trial period? Yes. When it is not definitive if home-working will work a trial period is justified. The length of the trial must be agreed at the outset, along with the criteria for assessing the success or failure of the trial. Otherwise, an employer will not be able to justify terminating the home-working easily.
Can an employer ask about childcare arrangements? Yes. An employee can not simultaneously care for a very young child or children and devote their time and attention to their work, in this context it is appropriate for an employer to ask this question before a home-working arrangement is agreed. This must be asked of all employees to ensure it is not asked in a discriminatory manner.
What if everyone wants to work from home? An employer should give preference to those who have statutory rights to be considered, i.e. disabilities, those eligible under flexible working legislation and after that where it may be regarded as a necessity or a convenience.
Sick Pay for Home workers? Yes. The provisions for SSP for qualifying workers are identical for office-based employees and home workers – noting the 11 March 2020 change to SSP entitlement from the first day of absence.
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