From new contracts to employees being distracted by the household chores. Philip McCabe, Principal Solicitor at McCabe and Co, takes a look at what employers need to know when employees want to work from home.
We all know the Employment Rights Act 1996 struggles to catch up and reflect current working methods like the gig economy. But even practices which preceded the industrial revolution like ‘homeworker’ aren’t properly covered or defined.
We also know the number of homeworkers, off-site workers, telecommuters or those working in telecottages is growing. According to a recent study by the TUC, numbers avoiding the office have gone up by a fifth in the last decade to reach a record 1.5m with the biggest growth being among women, older employees and those with disabilities.
Why the rise in homeworking?
On the face of it, everyone benefits. Apart from the obvious attraction to employees of no travel costs, an improved work-life balance and not having to dress or worry about your appearance meeting other’s expectations, it can suit employers too: fewer overheads, more productive and motivated workers and retaining skilled staff who might otherwise leave due to family commitments and health concerns.
However, there are reasons why an employer may be reluctant to embrace homeworking:
Less control and damage to team-working and culture
Homeworkers require a different management style and may not be able to be given the same level of support
The cost of depreciation and dependency on more technology.
Not trusting staff to “pull their weight”
Few businesses consider all the challenges and practicalities – perhaps if they did, we wouldn’t have seen nearly a quarter of a million more homeworkers over the last decade.
Contracts and contact time
Contracts will need to be rewritten and consent to the variation obtained to avoid a claim or dispute down the line. Where will their place of work be? You will likely want to require the homeworker to come to the office for appraisals, meetings and training.
How will you ensure someone’s domestic, family or other commitments like chores (or running another business) doesn’t overlap with work? How do you monitor when and where someone is actually? It is often assumed they will mirror office hours but if there is flexibility then rest breaks, maximum weekly working hours and the Working Time Regulations 1998 will have to be respected. With nobody to oversee them, the contract needs to make it clear homeworkers must regulate themselves.
Terms and conditions for homeworking
Terms and conditions should be no less favourable than those given to comparable employees – there is a risk of discriminating against those who work from home for a specific reason – many are women with family commitments. Many homeworkers are part-time too.
There is no general legal obligation on an employer to provide the equipment necessary for homeworking but a duty may arise to make reasonable adjustments under section 20 of the Equality Act 2010 in the case of someone with a disability.
What are the risks?
There are risks to the employer. All staff have an implied duty not to disclose confidential information. In practice, it is difficult to police what happens at home. Are computers properly password protected? Will sensitive papers be secure and inaccessible to others in the home? How is information transferred safely between office and home – both electronically physically. What disaster recovery plans are in place for the loss, destruction or damage of information? There are Data Protection Act 1998 and General Data Protection Regulations to abide by.
Who provides, maintains, and has access to computer equipment? This is especially important to avoid the risk of malware and viruses being introduced to office networks. A well drafted and enforced policy can mitigate some of the risks and be used as evidence in any disciplinary proceedings or defence to a Tribunal claim.
As with many flexible working requests, often only little thought is given to how long the arrangement will last – children grow up, health issues can improve, circumstances change. The arrangement will be permanent unless provision has been made to bring the homeworking arrangement to an end. Trial periods are sensible and whilst a general right to require an employee to revert to office working is theoretically possible, it may be difficult to put into practice without running the risk of a claim of indirect discrimination or constructive dismissal if the general right has not been exercised reasonably.
Health and safety for homeworkers
One of the major practical headaches for businesses is dealing with health and safety. An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable” (s 2(1), Health and Safety at Work etc Act 1974) so suitable and sufficient assessments of homeworkers will be needed to identify hazards and assess the degree of risk.
Unless the business takes specialist advice or learned from their mistakes, health and safety issues aren’t always obvious:
Some homeworkers may have difficulty with the boundaries between work and home life, leading to an increased risk of stress. Without supportive colleagues around, there is potentially isolation. Employers need to monitor work and stress levels and try to integrate homeworkers into the team where possible.
The Provision and Use of Work Equipment Regulations 1998 covers the use of work equipment in the home. Equipment supplied by the employer must be suitable for its purpose, maintained in good working order and inspected regularly. You should also ensure that suitable and sufficient lighting is provided wherever work equipment is used.
Though most will be low risk, accidents must be reported and first aid facilities provided.
So, how should employers approach requests to work from home?
Employees with 26 weeks’ service can make a request under their statutory right to apply for flexible working. Far more women than men apply. In rejecting a woman’s homeworking request an indirect sex discrimination claim could develop unless the refusal can be objectively justified. Under flexible working legislation, the reasons behind a rejection are relatively easy to establish.
In discrimination claims, objective justification is harder to prove – is there a legitimate business aim? Is requiring the claimant work in an office a proportionate way to achieve that aim? Favouring requests from women over men is equally as dangerous. Some creativity and flexibility is required by the employer.
Whilst there is no automatic right to change working arrangements, the request must be dealt with properly and fairly.
In Giles v Cornelia Care Homes ET/3100720/05, the employer tried to justify refusing homeworking on the grounds of data protection, health and safety, cost, loss of control over her work, and the possibility of Mrs Giles being distracted by the needs of her young child. Despite trying to cover all of the bases in the hope one of them may have merit, all were rejected by the Tribunal. Mrs Giles suffered indirect sex discrimination. The idea that her childcare responsibilities would cause her to make mistakes was, in the Tribunal’s view, based on an outdated stereotypical attitude. Mrs Giles was awarded a total of £29,293.
It is a lot for an employer to weigh up and for many, the burden might be enough to tempt them to refuse a request. If they get it wrong, they run the risk of an aggrieved and unhappy employee or an expensive constructive dismissal claim or one of discrimination.