Employees' rights when it comes to homeworking

Rebecca: Hello everybody and welcome to the next edition of the Employment Insights podcast.

Rebecca: My name is Rebecca Cairney and I'm a Partner in the employment team based in Liverpool.

Rebecca: I'm joined today by my colleague Mark Landon who is a Partner based in our London office. 

Rebecca: Hello, Mark, and thank you for joining us today.

Mark: Hi, Rebecca. It's a pleasure.

Rebecca: So today, we're going to be discussing homeworking.

Rebecca: So, employees' rights when it comes to homeworking, any future potential changes, other legal considerations for employers to consider and also the practical challenges in managing home workers.

Rebecca: So, to kick off then Mark, why do you think there's been a growth in atypical working and specifically home working in recent years?

Mark: I think there are a number of factors. I I think there's been an increase in in in HR sharing family responsibilities.

Mark: I think, longevity. I think, actually, people are often having to work longer to provide, you know, for funds in retirement, and, of course, they may not want to work five days a week in an office, whatever it happens to be. And I think also there’s often an increasing need to provide care for elderly relatives, which means that people might need a more atypical working pattern in order to have more time to do that. I think the increased cost in higher education means that we've got larger numbers of students who are available and need part time and casual work.

Mark: I think also the increased financial pressure on employers because a flexible workforce gives you a greater ability to meet fluctuating demands without having a sort of full time payroll. And I think also, one mustn't forget that, these days, many employers are able to reduce the amount of office space or workspace they provide on the basis that people will be working from home at least part of the time, and that can have a significant saving in terms of rent. And I suppose the other thing, of course, is unforeseen events like the COVID-19 pandemic, which has, accelerated technological developments, which in turn facilitate our ability to work remotely.

Mark: So I think it's a combination of things.

Mark: Of course, we are seeing, I think, some employers wanting people to come back to the office more. I think it's it is a pendulum that swings, but I think those factors will remain in play going forward.

Rebecca: Yeah. Absolutely. The COVID-19 pandemic, was a big one, wasn't it, in driving that, atypical and certainly the homeworking forwards.

Mark: And Yeah. I think it was happening already, but I think it certainly accelerated it. And I think what it did do is it provided some hard data as to people's productivity if they were working from home. You know? I think a lot of employers assume that people often wouldn't be able to work productively.

Mark: And I think, you know, that was the hard test, if you like.

Rebecca: Yes. Absolutely. Absolutely. So, is there is there actually a legal definition of what constitutes a home worker? No.

Mark: I don't think there is. And, of course, you might have somebody who works at home full time, although I think that's quite rare. The majority of people, I think, will work from home on a part time basis. You might be, you know, an agile or hybrid worker, which is a term that's often used for that.

Mark: It might be that actually you're a very mobile worker and your home is your administrative base. You know, it just makes more sense to set off from home and return home each day than to go into a workplace. So, you know, I think a home worker is just an atypical worker, and there are many shades of gray. And, of course, you may be, atypical in other ways.

Mark: I mean, you might be a home worker who works part time or under a fixed term contract.

Mark: So it's not as if there is only one category of atypical worker who might apply to an individual.

Rebecca: Yeah. No. Absolutely.

Rebecca: And so do employees have a legal right to work from home either part time or full time?

Mark: Well, not in in statute.

Mark: It may be that under your employment contract, it is a term of your contract that you can work from home full or part time. And I think certainly one sees these days when people are being recruited for a role, one of the questions they'll often ask is actually what are the arrangements around homeworking and agile working. But, I think when it comes to the actual law, I suppose the closest thing is that there is a legal right to request flexible working, which HR might involve home working, and the employer has to consider that seriously, but it's not actually a right to work flexibly.

Mark: And I guess, probably discrimination law is the thing that impacts, as well in that actually in certain circumstances, an unreasonable refusal to permit homeworking either full or part time might give rise to a discrimination claim, and, you we can have a chat about that in a minute.

Mark: I think of course what you have to bear in mind as an employer that accommodating homework and requests can have very positive benefits. It can certainly facilitate recruitment and retention of staff by meeting personal needs. I think it can improve people's morale and often quality of service and strengthen the employer's reputation. And remember, we have an aging workforce in the UK, and all employers are in increasing competition for the talent that's out there.

Mark: But, of course, homeworking requests have to be balanced against the commercial and operational needs of the employer. And I think what is really important, and we can come back to this later on when we talk about common challenges, is to make sure you adopt consistent criteria when deciding to whom you might grant home working. Because I think what is really important is to avoid, a sense of favouritism, and so on and so forth. And also, of course, to make sure that if you do grant homeworking, it doesn't lead to performance concerns because your criteria ensure that you balance the individual's desire for home working against the needs of the organisation.

Rebecca: Yeah. Absolutely.

Rebecca: So if an individual doesn't have a contractual right to work from home, whether that's part or full time, but can we chat through, I suppose, the legal rights that are commonly associated with home working and what people should be considering?

Mark: Sure. I mean, I think there are probably sort of three or four. There's the right to request flexible working, and I'll briefly summarise what that is. I think there's the impact of equality law.

Mark: There are health and safety concerns as well because the duty to provide a safe place of work would extend to the home if you're formally permitting somebody to work from home. And then I think there are cyber security and data protection issues because, you know, almost by definition, if an employer's network is extending to the home, well, the kit that somebody uses at home, the antiviral software, etcetera, etcetera, means that you've got to ensure that you are guarding against cyber and data protection issues. So, I suppose if we look at those in turn, starting with the statutory right to request flexible working, well, of course, it's a day one right, and you can make a request for any reason. It used to be limited to caring needs, but it's no longer.

Mark: And, you can now make two formal requests a year in a twelve-month period.

Mark: And, of course, it's one of those slightly odd things that when you look at the law, it says that, a request for a temporary or permanent change can include one or more of the following, a change to hours of work, the times when you work, or your place of work, and it can be a combination of those. And so, essentially, the right to request flexible working means you could literally ask for any sort of pattern of work under the legislative regime.

Mark: Now you've gotta put in a written request. You should specify that it is a formal statutory request.

Mark: And, certainly, the ACAS code of practice says that it's important to provide as much information as possible about what you're seeking by way of change, the circumstances that have led to it. And also, I think, you should specify if you're making the request in relation to some right under equality legislation. So, for example, it was a disability related adjustment that you were seeking. And all of that, of course, is important because as I'll mention in a moment under the new employment rights bill working its way through parliament, there is gonna be quite an important change made to this right to request flexible working.

Mark: Now what the law says is when you receive as an employer a request for flexible working, you've got to deal with it in a reasonable manner. If you're not gonna say yes, you've got to consult with the employee before refusing the request, and I think a key part of the consultation is to see whether there is some compromise you might come to. You've got to notify the employee of the decision, including any appeal outcome within a two-month period.

Mark: And importantly, if you're going to refuse the request, then there are one or more of eight prescribed grounds upon which you can refuse. So, the burden of additional costs, the detrimental effect on meeting custom demand, an inability to reorganize work amongst your existing staff, an inability to recruit additional staff, detrimental impact on quality or detrimental impact on performance.

Mark: There isn't enough work during the period when the employee wants to work or else you've got planned structural changes coming in, and it's just bad timing. It's just the wrong time to be considering a request.

Mark: Now I think the change that we're going to see that's very material under the employment rights bill is currently if an employer says no and cites one or more of those eight reasons, there's no actual statutory requirement to explain exactly how that reason applies and what considerations you've taken into account before deciding to reject the request.

Mark: Yeah. ACAS says, you know, you would do well to provide all of that information, but there's no actual, sort of, obligation to do so. However, as from 2027, under the employment rights bill, an employer will only be able to refuse a request for flexible working if two things apply. The first is that the employer considers that the application should be refused on one or more of those eight existing prescribed grounds, but secondly, it must be reasonable for the employer to refuse the application on one or more of those grounds. And if you do refuse the application, when notifying the employee of the decision, you've not only got to state the ground or grounds for refusing the application, but give a full explanation as to why you think it was reasonable to refuse that application.

Mark: What this is going to mean is I think employment tribunals have now got a much greater will have a much greater ability to scrutinize the employer's decision making than it currently has. I think a lot of critics of the current right to request flexible working toothless because, essentially, employment tribunals don't look behind the reason. Yeah. Whereas I think as from 2027, if actually it's down to an employment tribunal to judge whether it was reasonable for the employer to refuse the request of one or more of those eight grounds when it will be able to scrutinize what your thinking was and what your reasons were. So I think that's the first the right to request flexible working, and I think, you know, clearly an employer that just didn't give proper consideration to the request for home working might find that they, came a cropper.

Mark: But if you then look perhaps at equality law, I think in practice, that tends to be something which employers worry about more. And I suppose the sort of most common equality law issues are sex discrimination and disability discrimination.

Mark: So if you're looking at sex discrimination, the kind of classic is where somebody is requesting homeworking, because of child care reasons. Now the courts take what's called judicial notice of the fact that women are the primary child carers in the UK. You know, we may all think now, well, society is changing, and that's much more shared. But at the moment, you don't have to prove to a court that women are the primary childcarers. They recognize that that is the fact. And what that means that if a female employee requests full of part time home working for child care reasons and this is rejected by the employer, then she might bring a claim for indirect sex discrimination, on the basis that women are more likely to be, sort of inconvenienced by such a refusal than men because women are more likely to be the primary childcarers.

Mark: And, of course, what that would happen is the employment tribunal would have to assess whether the employer was justified in rejecting the request for full or part time homeworking.

Mark: And, of course, things are never that simple because since January 2024, if a dad wanted, homeworking full or part time for HR reasons and could show that actually he was put at substantially the same disadvantage as a female comparator by an employer's rejection of a request for flexible working, well, he too now can bring an indirect sex discrimination claim. And also the specter of direct discrimination arises because if an employer granted a home working request for childcare reasons to a female employee on the basis that she was more likely to be the primary childcare but didn't grant a similar request to a male employee, well, you could see that if the reason was that he was male and she was female, you're gonna end up with a direct sex discrimination claim against the employer.

Mark: So, you know, essentially, I think the practical issue is these days that as an employer, if either a male or female member of staff makes a request for homeworking, full or part time for childcare reasons, you've gotta have regard to indirect sex discrimination.

Mark: And then, of course, disability discrimination is, you know, one of the really key equality issues because if an employer receives a new request for homeworking or faces resistance with n existing homework who doesn't want to return to the office on a full or part time basis, and in either case, the employee maintains that homeworking is in part at least necessary due to an underlying disability, then any refusal to accommodate the employer's wishes could result in an employment tribunal claim based upon one or more of indirect disability discrimination, discrimination arising from disability, and or an alleged failure by the employer to make a reasonable adjustment.

Mark: And, of course, one often describes these as the sort of, holy trinity of disability protection because with regard to an allegation of both indirect disability discrimination and discrimination arising from disability, there is a justification defense, but a justification defense is typically going to stand or fall on whether the employer actually fulfilled its duty to make reasonable adjustments. And you can see the argument would be that if an employer has a policy, for example, of only permitting homeworking up to two days a week, requiring people to come back to the office, for four days a week or whatever.

Mark: The challenge would be that, actually, if a disabled person was put as a substantial disadvantage by that policy, remembering, of course, that substantial in this case means simply more than a minor or trivial disadvantage, then the argument would be that the employer should, by way of a reasonable disability related adjustment, allow more home working.

Mark: Now you've got to, I think, reasonably balance that because, you know, I  don't think anyone could normally reasonably say, I must be allowed to work from home fully and never come into the office. I think most of, you know, courts would recognize that there's an obvious benefit, in people attending at least on a periodic basis, but it's going to be very fact specific.

Mark: And I think the other thing, of course, is this. If I do allow someone to work from home, for a disability related reason, And if in fact I implement various disability related workplace adjustments in the office, do I have to replicate those adjustments in their home or at least give them a means of, you know, carrying any bits of equipment or adjustments between office and home because, you know, there is also the issue that if I am requiring someone with an underlying disability to commute two days a week, well, actually, I've gotta make sure they can do so safely and effectively.

Mark: So I think, from a practical perspective, disability discrimination yeah. And bear in mind, I think one of the one of the benefits of COVID-19 and we talked about this a bit earlier, is there is hard data now to show whether people can be productive from home. And I think actually, home working now does provide a reasonable adjustment in itself, which probably a lot of employers pre COVID wouldn't have seriously considered.

Mark: Yeah. So I think there is actually a greater scope. But aside from sex and disability, I think you've got to bear in mind, you know, there are those nine protected characteristics under equality law, and so you might get a request for homework in linked to maternity.

Mark: I mean, say, for example, during the latter stages of my pregnancy, I was struggling to commute full time, and I wanted some homeworking. Might be age, simply age discrimination. I need to work longer, but, actually, I'm finding commuting, you know, full time very tiring, and I want to have a good balance. It might be religion or belief. Say I want to work from home during a period of fasting when commuting might be more tiring.

Mark: So, you know, I think what the employer needs to do is to be quite open minded about the fact that under equality law, there might be one or more reasons why someone is seeking homeworking on a full or part time basis. And I think what this does mean is that any internal, policy and procedure covering the right to request should ensure that employers are encouraged to explain very fully the reasonable reasons behind the request for homeworking.

Mark: And, certainly, managers should never reject a request for full or part time homeworking without sitting down and properly exploring all the underlying reasons. And if there is anything that suggests there might be an equality related link, when you're gonna have to properly explore that and show you've explored it if you're gonna be running a sort of justification argument for saying no. So I think that's equality. I guess the other things to bear in mind if you're looking at the sort of legal rights associated with homework are health and safety and cyber and data security.

Mark: So, health and safety law comprises legislation, the Health and Safety at Work Act 1974, and supplemented by various common law duties and codes of practice and other guidance.

Mark: And, essentially, under section two of the act, employers must, so far as is reasonably practicable, provide and maintain safe places of work, safe systems of work, and adequate facilities and arrangements for welfare at work. Now if I'm formally allowing you to work from home part time, I've got to make sure that your workstation at home is fit and proper for you. If I am allowing you to carry equipment to and from the office, I've got to make sure that you can do so safely. You know, these are all things that I need to bear in mind. And I think with things like workstations at home, an awful lot of employers will provide sort of online videos to enable people to sort of self-assess their workstations.

Mark: But, you know, I think it is very important to have an appropriate policy that governs home and agile working and also explains what the health and safety obligations are remembering also, of course, that employees are under a duty to look out for their own health and safety as well. But, you know, that is something that shouldn't be overlooked. And I think there is a difference these days. You know, pre COVID, working from home on the odd day, fine.

Mark: But, actually, you know, you might sit at the kitchen table on a pretty uncomfortable chair, but it was a pretty irregular thing. But as soon as it becomes a formal part of the working arrangement really the employer is under these health and safety obligations. I think the other thing with health and safety is monitoring the ongoing well-being of home workers because the experience of many people during the COVID lockdown, was that you could see the potential detrimental consequences for mental health whether or not someone lives alone. And I think that a responsible employer needs to implement practical measures to monitor people's well-being, taking into account the increased remote nature of many people's working lives.

Mark: And, you know, I think, ensuring a reasonable amount of office attendance and a structured approach to management, including regular face to face feedback sessions, enables one to just actually check that people are okay. Because I think even with a Zoom or Teams call, if I say to somebody, you know, how are you? And you go, oh, I'm fine. It's quite hard to pick up on those visual signals that tell me you're clearly not fine as compared to sitting across a desk or a cup of coffee talking to you in person.

Mark: Yeah. But and I think the final two things, just, you know, I'm pretty sure I've gone on long enough, is cyber and data security.

Mark: And I think, you know, employers must ensure that appropriate levels of cybersecurity are implied and adhered to by those working from home. And so you might say, for example, that you can't use your own home PC to access work. You would have to use a laptop provided by work with all the sort of suitable antivirus things applied to it.

Mark: And, obviously, data protection.

Mark: I mean, the classic one is don't leave the laptop on the train.

Mark: Also, I think you've got to think very carefully. Do you allow staff to take documents out the office? Most employers won't now.

Mark: You know, but you've gotta make sure you've got guidelines and measures in place, to protect against that because, you know, inevitably, I think if you are allowing people to work from home, you are potentially increasing the risk with regard to cyber and data security.

Rebecca: Yeah. So there's an absolute load of things for both employers and and employees to consider them by the sounds of it, certainly on the on the legal front.

Rebecca: I mean, what about what about the practical side? Are there any sort of common challenges in managing home workers, for example?

Mark: Yeah. I mean, I think the first thing is that you have to be much more structured. You know, when people are in the office every day, management by walking about can be quite effective.

Mark: When they're not in the office, I think you do have to be very structured. So, for example, I think if you agree that a team will come into the office at least one day a week, it ought to be a three line whip. I think if you're agreeing to have regular review meetings, you’ve really gotta stick to them. I suppose in terms of common challenges, I think one is unmonitored informal homeworking and intentionally morphing into a more formal arrangement. And I've seen that where people have said to people, well, you must be in the office three, four days a week. And it turns out actually that since COVID, they've never been in the office more than a day, a month, or something. And the obvious question is, well, how did that happen?

Rebecca: I think prioritising multiple homeworking requests. I mean, at the end of the day, an organisation has to fulfil its function. You've got to provide services and so on. And, what do you do if you can't accommodate everybody's home working request? How do you prioritize? And I would suggest, for example, that you would probably need to take those equality factors into account in the sense that if somebody wanted to work from home for an equality related reason and someone else wanted to work from home because they just fancied working from home and didn't wanna commute every day, well, if I couldn't accommodate both requests, I would pretty much certainly give priority to the one who had an equality related reason behind the request.

Mark: And I think reaching breaking point or maximum density I mean, any organisation office at any one time?

Mark: Are there key parts of the week? Are there key parts of the month or the year, etcetera?

Mark: And trying to sort of schedule your homeworking around that is really important because I do think very often when you get requests for homeworking, it tends to be quite a reactive thing. You know? If someone comes in and says, I wanna work from home or I don't wanna come back to the office, but actually planning ahead and saying, look. You know, we struggle because the classic being Mondays and Fridays, the office is like a ghost town.

Mark: Tuesday, Wednesday, Thursday is fine. Well, actually, one needs to plan ahead and say, look. We need, if you do, better coverage at the beginning and end of the week. So, actually, let's look at the reasons why people might struggle to come in on a Monday and Friday.

Mark: And, actually, if some have better reasons for not being able to do that, we've gotta have some sort of a rotor that means we do have coverage.

Mark: I think keeping the situation under review, I think by definition, atypical working and homeworking can't be set in stone. You know, I might grant it to you now, but it doesn't mean that it's granted forever. And, equally, of course, the other way round. Let's be honest.

Mark: You know, if you take our London office at Weightmans, well, we've probably got 110 desks for about 280 people. Now if 280 suddenly said, you know what? We wanna come back to the office five days a week. I'm not sure what we would do.

Mark: And so I think keeping the situation under review really cuts both ways from both the employees and the employer's perspective.

Mark: I think collegiality is important. I think one sees that particularly with the sort of generation. Again, let's take lawyers.

Mark: You know, if you, were a trainee or an apprentice during COVID and were working from home, and if you qualified post COVID but actually have always worked at home at least three or four days a week, you're simply not going to have established the sort of personal relationships and collegiality that you would if you look back pre COVID when people tended to be in the office rather more, seeing people going out for a drink after work.

Mark: You know? It's amazing, isn't it, also how often work opportunities become that? Could you overhear a conversation or you're microwaving your lunch and you have a chat with someone for five minutes? So I think that maintaining a sense of belonging and collegiality is really important.

Mark: And I know it sounds a bit trite, but, you know, actually, I suspect that an awful lot of people who did in the law qualify post COVID are rather more nomadic in their outlook career wise because there isn't the same sense of belonging and engagement and loyalty or call it what you will when actually I'm working from home quite a lot. Because let's be honest, if I work from home three days a week, frankly, whether I'm working for one law firm or another or one organization or another doesn't have nearly as big an impact as if I'm actually going into a workplace five days a week and so on and so forth.

Mark: I think if you are permitting homeworking, then sensible employment contract terms are really important, building in sensible terms, flexibility, etcetera. And then I think, as I said, with remote management, I've already mentioned the importance of adopting a structured approach, but performance and sick absence management and discipline, etcetera, I think they're all the usual things in terms of discipline, making sure people appreciate that even though they may be working from home, the same standards of behaviour are expected of them because, you know, it is all part of the course of employment, a phrase that's, sort of familiar to those dealing with discrimination.

Mark: And I think in terms of performance, actually, you know, one does have to measure carefully how people are performing because one wants to ensure that you don't get a drop off in performance.

Mark: And I think, you know, the hard data I talked about during COVID, well, you know, it's become slightly more sort of gray and wishy washy now with people doing a combination of home and work. But, actually, how do you measure performance? It's an interesting question, isn't it, for a lot of organisations?

Mark: Yeah. How do I you know, is the important thing the end result? Is the important thing how about how you go about achieving the end result?

Mark: How measurable are people's outputs and so on and so forth. And I think just sort of keeping all of that under review because it's very much an evolving living thing, all of this. I think we're still grappling with, you know, the whole sort of agile atypical working piece. And we know that under the employment rights bill, there will be enhanced rights to demand, sort of flexibility and so on. But, nonetheless, organisations, whatever they do, still have to function, still have to provide a service, and it must be a sensible balance between the commercial and operational needs of the organisation and the needs of the individual.

Rebecca: Yeah. No. Absolutely.

Rebecca: There's, some really, really interesting points there, and I think, certainly those common challenges and, and the practical considerations for managing homework is can sometimes be, overlooked. And I think it is really important to make sure, you know, whether you're HR, whether you're an employer, that, you know, you've got some of those things, in the back of your mind when you're thinking about whether it's flexible working requests or, agile policies or whatever else it might be. So, I think that's really helpful. Thank you, Mark.

Mark: No. That's a pleasure.

Rebecca: So for everybody listening, please keep an ear out for our other important employment law updates by subscribing to our podcast channel the Employment Law Insights.

Rebecca: But for now if you do need any assistance with anything whether it's HR or employment law related then please feel free to contact me on Rebecca.Cairney@weightmans.com or Mark on mark.landon@weightmans.com. 

Rebecca: And huge thank you again, Mark, for providing us with that really helpful update.

Mark: It's a pleasure.

Rebecca: Thank you. And, thank you everyone for listening.