Requests to work from home are becoming more common as
employees strive for work-life balance. But how do you handle them? With the
utmost consideration, warns Sue Nickson
Childcare
Sarah has been employed as a sales and marketing researcher for GBF Ltd for
the last five years. She has recently had difficulties with her childcare
arrangements – the local nursery which looked after her children has closed.
Her job role involves preparing sales plans and researching competitors’
pricing standards using a computer and accessing the Internet. She believes her
childcare problems would be solved if she could work from home and bring in
part-time help. She has formally submitted the request and has even offered to
purchase the necessary equipment. Does GBF Ltd have any obligation to comply
with her request?
SN comments Sarah does not have the right to insist upon changes
being made to the terms and conditions upon which she is employed. However,
where terms and conditions stipulate a requirement or condition, which in
practice means one sex is placed at a disadvantage in comparison to the other,
it is possible that an employee will have a claim for indirect discrimination
under the Sex Discrimination Act 1975. An employer will have a defence to such
a claim if it is able to show the requirement or condition is justified. This
means that in order to guard against a discrimination claim GBF should give
careful consideration to the request. If it fails to do so and rejects it
outright, then it will not be able to use "justification" as a
defence.
Could the requirement to attend the workplace give grounds for a claim of
indirect sex discrimination? This was considered in the case of Lockwood v Crawley
Warren Group, 2001, IDS Brief 680. Lockwood faced childcare difficulties when
her mother became too unwell to continue to look after her children. To try to
resolve the problem she asked if she could work from home and also offered to
purchase the necessary equipment at her own expense. In response her employer
offered her a two-week period of leave to sort out childcare arrangements, but
said she would then be required to return to work full time. She claimed this
treatment amounted to indirect sex discrimination. The case proceeded to the
Employment Appeal Tribunal where it was held physical presence at the workplace
was a "requirement" within the scope of the SDA. It was considered to
be similar to a request for part-time working.
GBF should therefore consider Sarah’s request for homeworking in the same
way as it would consider a request for part-time working. An unjustified
requirement to work full time at the workplace may amount to indirect sex
discrimination.
Disability Discrimination
David is a member of the sales team with specific responsibility for
Internet sales at GBF. He has been diagnosed as suffering from agoraphobia and
has great difficulty going outside. He has had to have several days off work
when he has been unable to leave the house. He has now asked GBF to consider
allowing him to work from home in order to avoid the ordeal of the journey to
and from work. Does GBF have an obligation to consider this request?
SN comments GBF would have to investigate further in order to
ascertain if David’s medical condition amounts to a "disability"
within the scope of the Disability Discrimination Act 1995. In order to qualify
for protection under this legislation the employee’s condition would have to be
long-term and substantially affect his normal day-to-day activities.
Clearly medical evidence would be required but if it is confirmed he is
suffering from a "disability" the company would be under an
obligation to consider reasonable adjustments in order to remove any
disadvantage David faced in the workplace. Arranging for him to work from home
could be a step that an employer would be expected to take.
When assessing whether it would be reasonable for GBF to agree to the
request the following factors should be taken into account.
– The extent to which taking the step would prevent the effect in question.
– The extent to which it is practicable for the employer to take the step.
– The financial and other costs, which would be incurred by the employer in
taking the step and the extent to which taking it would disrupt any of his
activities.
– The extent of the employer’s financial and other resource.
– The availability to the employer of financial or other assistance with
respect to taking the step.
Justifiable Refusal
Jane, the senior sales manager, has heard the HR team at GBF has received
two requests for homeworking and so decides she will also demand a similar
arrangement. She currently works long hours and sees little of her children,
and points out her family will benefit if she leaves work earlier in the
afternoon and makes up the hours lost working from home after the children are
in bed. GBF refuses her request straight off saying she is needed in the
office. Is this justifiable?
SN comments Homeworking is something many employers wish to resist on
a large scale because of the lack of control it threatens. Provided GBF can
show it has considered the request for homeworking and has some demonstrable
reasons for its concerns, it will not in most cases be too difficult to show
justification for the requirement that an employee attend the workplace.
Factors that should be taken into account include: whether the arrangement
would cause practical difficulties regarding customer liaison; what the likely
cost considerations regarding equipment would be; whether there could be
technological difficulties regarding the employee’s accessibility; and whether
there could be health and safety risks regarding the facilities or space
available in the home.
It would have been easier to show justification if GBF had tried homeworking
for Jane and shown the trial was unsuccessful. A claim of discrimination would
be unlikely to succeed then as GBF would be able to show they had taken steps
to assess the feasibility of the arrangement rather than simply assuming it
would not work.
However, the more senior the employee the more likely it is that a tribunal
would accept the requirements imposed on her or him are justified. In the case
of Sykes v JP Morgan, 2000, EOR Case Law Digest No.45, a female employee who
reported directly to the managing director and held the title of vice-president
claimed indirect sex discrimination when her request for homeworking was
refused. The tribunal found the requirement to attend the office was justified.
The employers had a reasonable and real need to have her working physically in
the department. All the members of the department were required to carry out
work as and when it presented itself, therefore the requirement to attend the
office was appropriate to achieve the business aims. In reaching its decision
the tribunal also took into consideration the fact that this was a senior
employee who was generously remunerated for the work she did, commenting that
"where an individual is as highly paid as was this applicant, the
[employer] had the right to make certain demands in respect of hours and place
of work."
Therefore GBF should still have considered the request but can take comfort
from the fact that in the circumstances it would be more difficult for Jane as
a senior manager to convince a tribunal that refusing this sort of alteration
in his terms and conditions of employment was unjustified.
Health and safety
GBF decides to agree to Sarah’s request to work at home to prevent a
possible discrimination claim. What should it do now?
SN comments GBF still has obligations to safeguard Sarah’s health and
safety whether she is carrying out duties in the office or at home. The
provisions of the Health and Safety at Work Act 1974 and the various other
Health and Safety Regulations will still apply.
GBF needs to carry out a risk assessment in order to comply with the
Management of Health and Safety at Work Regulations. This would mean a visit
would have to be made to ensure there are no hazards at Sarah’s home that would
place her at risk. Sarah has offered to buy her own computer, but whether she
uses her own or company equipment GBF will still need to ensure compliance with
the Health and Safety (Display Screen Equipment) Regulations. These require,
among other things, that her seating and the positioning of the VDU meet the
required safety standards.
GBF will also have to deal with practical issues such as insuring against
injury and preventing the potential psychological problems caused by Sarah
being isolated from her colleagues.
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The Health and Safety Executive has published guidance for employers on the
steps that have to be considered.
Sue Nickson is partner and head of employment law at Hammond Suddards
Edge
