Homeworking – Best Practice

Since the Covid-19 pandemic, employers have seen a rise in the numbers of employees requesting homeworking or hybrid working (dividing time between the workplace and a remote location) as their preferred method of employment. Although those terms have yet to be expressly defined in the Employment Rights Act 1996 (“the ERA”), the benefits and drawbacks to both employees and employers have become increasingly apparent – and the basis of claims made in Employment Tribunals all over England and Wales.

Homeworking is usually discussed from the perspective of the employee – but what’s in it for the employer? What rights and obligations does an employer have towards  employees?

Under the Flexible Working Regulations and ERA 1996 (as amended), an employee can make a request for flexible working from day one of employment and can make up to two requests annually. Although it is ultimately within the discretion of the employer to legitimately refuse a request on any of or a combination of eight specific grounds, employers should also consider the benefits of employees working from home: reduced overheads, the skills retention of those who are unable to work in the office due to family commitments/disability, increased productivity and motivation, and recruitment from wider geographical areas.  

Employers also need to consider their approach to homeworking. If there is no overall policy which provides for homeworking, or mobility clause in the employment contract, employers should be aware that an employee’s change in location for work purposes triggers the need for a contractual section 4 statement under the ERA, detailing the particulars.

Staff Handbooks should be updated with flexible working policies and procedures, and the implications of employees requesting to work from abroad should be considered (e.g. the legal difficulties of extended periods of time spent working in a foreign jurisdiction, differing time zones and the hours of work, liability for taxation, the remit of the employer’s insurance policies, data protection matters, and the need for clauses on governing laws and jurisdiction).

Practically, employers ought to consider whether homeworking is to be limited to specific roles, and whether there should be: a trial period, a minimum requirement for workplace attendance (for meetings, appraisals or training), a minimum standard for homeworking, or the option for employees to choose specific days when hybrid working?

Where an employer has received several requests for homeworking there should be a fair and transparent process in selecting those who are permitted to do so. For example, those with protected characteristics, such as disabled people, who may need to work from home, should be given preferential treatment if there is a waiting list - so as to avoid discrimination claims under the Equality Act 2010. Moreover, part-time employees cannot be treated any less favourably than full-time employees.

Employers also need to be aware of potential claims for Unfair Dismissal; this may occur where employers request that their employees come back to the workplace, and then dismiss those who refuse. Constructive Dismissal may be claimed where an employee is out of a job because the terms of the contract were changed without agreement.

A simple policy drafted into the Staff Handbook, together with a clause in their employment contracts, may be all that you need to inform your employees that homeworking can be requested, but that it remains within the discretion of the employer to allow it (and that subject to a period of notice) it can be revoked at any time.

Please contact our Employment team at FMGS Law Limited if you require any assistance and advice or more information.