Help, my staff want to work from home

If you’re one of many employers who made the transition to homeworking in the first few weeks of lockdown, you’ll soon be celebrating (or not) your one-year anniversary of going remote.

But if you’re preparing for an eventual return to the office once restrictions are lifted, you might find that employees have gotten comfortable and wish to work from home for longer. Indeed, many believe there will be a fundamental shift in the way people work, with experts predicting that hybrid working will become the norm rather than a perk of the job.

If you’re anticipating an influx of flexible working requests, here’s our tips.

1. Decide what's viable

Depending on the nature of your business, homeworking may pose more or less of a problem and you will need to think carefully about what will and won’t work for you. While you will need to consider requests on an individual basis, it’s important to get a general sense of the ways more permanent homeworking might be possible for (and indeed benefit) your organisation, and the sorts of roles and activities where it could create issues or simply isn’t feasible.

Given the rise in businesses offering homeworking, it makes sense to be as flexible as you can here, as this will help you to retain your workforce and keep them engaged. Indeed, with only 8% of employees wanting to go into work every day compared to 20% of employers who expect this, it’s easy to see where problems might arise, and you should weigh up the potential advantages and disadvantages carefully. You might feel more comfortable with employees being office-based, but is it worth it if they become disengaged? Conducting your own survey to get an indication of the general mood may help you to strike the right balance.

Don’t forget, it’s not just employees who stand benefit from homeworking and you should try not to view this as an exercise where you are having to bend to employees’ demands. As well as financial savings on office space, studies have shown that flexible workers have greater job satisfaction, are more committed, and are more likely to put in effort of their own accord. It’s also been linked to reduced absence rates. That said, you do need to be realistic.

Think about what you have learned from the past year – what’s worked well, what positive consequences you have seen, and where issues have arisen – and use this to inform your stance.

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2. Know how to handle homeworking requests

If your business premises are the employee’s contractual place of work, it is reasonable for you to expect staff to return once restrictions permit. In reality, this might not be so simple; you may find that employees raise safety concerns or, just as likely, that they feel working from home has been a success and wish to remain fully or partly remote.

If an employee point-blank refuses to return to the workplace, you will need to establish why, and this may be a disciplinary matter if their refusal is unreasonable. However, if they request to work from home on a more permanent basis, this is a different matter.

The law doesn’t give employees a right to flexible working, but it does give those with 26 continuous weeks of service the right to request flexible working once every 12 months. Legally, employers must:

  • Deal with requests in a reasonable manner (reasonable steps would include meeting with the employee to discuss their proposal, offering them the right to be accompanied to the meeting and giving them the opportunity to appeal);
  • Make a decision within three months; and
  • Only reject a request on certain business grounds (such as the burden of additional costs, or a detrimental impact on quality, performance or the ability to meet customer demand).
"With many having trialled homeworking successfully in response to lockdown, employees will have more scope to argue their case. You should therefore consider why it is necessary for the employee to be physically present, and ideally have objective evidence to support your decisions. This is especially important if you come to different conclusions for employees who, on the face of it, work very similar roles."

James Tamm, Director of Legal Services at WorkNest

If you fail to deal with requests in the manner outlined in the Employment Rights Act 1996, a Tribunal may order you to reconsider your decision and can also award compensation of up to eight weeks’ pay.

A further concern for employers is discrimination. Rejecting a request because of someone’s sex or disability will amount to direct discrimination, while any reason for rejecting a request that disadvantages a protected group – intentionally or not – may amount to indirect discrimination unless it can be objectively justified. An example of the latter would be rejecting a request from a female employee that was made due to childcare commitments. Given the average amount awarded in discrimination claims in 2019/20 was £27,043, this can be a costly mistake to make.

To avoid issues, it’s a good idea to draw up a homeworking policy which sets out:

  • Your general stance to homeworking (e.g. ‘flexible working requests will be considered provided that the needs of the business are met’) and the possible benefits;
  • The process for making a homeworking request (it may be best to discuss the request informally with the employee first to identify any obvious problems before the they submit a written request);
  • What information needs to be included in a request;
  • The factors that would make it unlikely for a request to be granted, such as a poor performance or disciplinary record; and
  • If the request is approved, what happens next (this will simply be a case of confirming, in writing, a permanent change to terms and conditions of employment) and the conditions relating to homeworking.

Agreement to Homeworking Letter

This template letter can be used to confirm to employees that their request for homeworking has been granted, either unconditionally or on a trial basis.

3. Know where you stand legally

Finally, it’s important to understand how a transition to homeworking may impact your HR and health and safety responsibilities.

Though homeworking might appear relatively low-risk, employers still owe homeworkers a duty of care. The core piece of health and safety legislation in the UK, the Health and Safety at Work Act 1974, applies not only to workers based on company premises but to anyone working from home, too. Homeworking may also introduce new hazards such as lone working and may contribute to mental health and wellbeing hazards such as stress, isolation and fatigue.

While you are not responsible for everything that goes on in somebody’s home, you must take “reasonably practicable” steps to minimise the risks arising from homeworking. This includes conducting a homeworking risk assessment, providing the necessary equipment and training, and ensuring workers know how to report problems.

"When employers initially reverted to homeworking, the HSE’s attitude was that this was a short-term arrangement and, as such, temporary provisions should be implemented such as a basic laptop and phone for communication with other employees. Now, as more businesses consider making homeworking the norm, employers will need to give further thought as to what measures will need to be introduced to mitigate risk."

Nick Wilson, Director of Health & Safety Services at Ellis Whittam

Additionally, from an employment law perspective, any permanent homeworking change will necessitate a review of your Contracts of Employment as they may need to be amended. You may also need to implement additional company policies, such as a remote worker agreement, or changes in company rules to comply with GDPR.

Legal duties aside, homeworking also comes with other responsibilities and challenges, including getting virtual communication right (tip: this doesn’t mean just ramping up meetings), changing the way you monitor and manage performance, and ensuring workers know how to access support if they are struggling.

Much of this will have been ironed out over the last 12 months, but it’s important to take stock before agreeing more long-term homeworking arrangements. Were there IT issues? Did professionalism slip? Did you struggle to oversee employees’ workloads? Are workstation set-ups sufficient? Now is the time to pause and review.

Got questions about your obligations?

Any return to the office – or not as the case may be – is likely to create obstacles for employers. From scrutinising your safety measures and developing your stance on vaccination to managing an influx of flexible working requests and possible refusals to work, our Employment Law and Health & Safety specialists can help.

For advice and support on your return to work challenges, call 0345 226 8393 or request your free consultation using the button below.

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