Home truths: homeworkers and the law

homeworkers

Working from home can have many benefits, as long as employers amend the standard employment contract and take care of health and safety and data protection risks. Katie Williams offers some practical guidance.

The number of employees who work wholly or mainly from home is on the rise, as both workers and employers realise the advantages of homeworking. According to recent figures from the Office for National Statistics, around four million employees (or almost one in seven people) now work from home.

Many employees ask to work at home out of necessity, due to family or other commitments, and others do so in pursuit of a better work-life balance. Equally, employers see this as a way to cut overheads and incentivise their workforces without additional expenditure.

While technological advances have facilitated this trend, there are a number of hurdles that both the employer and employee must overcome in order to make the arrangement work successfully.

This article addresses some of the benefits and potential challenges of homeworking for employees; considers how a standard employment contract should be amended to encompass homeworking; notes the issues of health and safety; and questions whether or not a homeworking request can be refused.

What are the benefits and challenges of homeworking?

Homeworking presents an employer with a number of benefits, including reduced overhead costs (especially saved office space), increased productivity as a result of cutting out travel time, improved motivation and, in particular, better staff retention as homeworking enables those who might otherwise have had to leave their job due to family responsibilities or location to continue performing their role.

It can also enable staff to work more flexibly, meaning that employers might be able to provide client service over a longer working day.

Challenges can include: an employer’s perceived loss of control over its workforce; potential damage to the office culture and team spirit; difficulties supporting homeworkers to the same level as office workers; overcoming concerns about trust; and fearing that a homeworker will not be pulling their weight. Often, the latter point is a misplaced concern as many homeworkers find themselves doing more work than they should.

For the homeworker, loneliness and isolation can be unexpected challenges to overcome, together with the difficulty in separating home and work life and getting that balance right.

What changes should an employer consider making to a standard employment contract?

If a homeworking arrangement is agreed, some parts of the employee’s contract will need to be amended. Below are some of the key areas to address.

Place of work

Even if the employee’s main place of work is at home, an employer will still want the ability to require the employee to attend the office on specific occasions, for example for key meetings, client events and appraisals. This ability should be expressly built into the contract.

Hours of work

An employer must agree with the employee what hours he or she will be available for work and to what extent those hours can be flexible. Both parties should be aware of the stipulations contained in the Working Time Regulations 1998 with regard to hours and breaks.

However, the contract should make it clear that homeworkers are responsible for regulating their own breaks, as this is clearly something that is difficult for the employer to monitor. Employers should be mindful that this is an area homeworkers can often find difficult to get right and should arrange for regular catch-ups to see how the individual is managing.

Expenses

The contract should specify what expenses the employee is entitled to claim for, for example, telephone, heating, lighting and travel costs. There are no clear rules on what should be covered, and it is broadly up to the employer to decide what proportion of the employee’s running costs it would be reasonable to cover.

Confidentiality and data protection.

While all employees are under an implied duty of confidentiality, employers will usually want to include an express confidentiality clause in a homeworker’s contract, making it absolutely clear what information is deemed confidential and how such information should be kept secure (eg via passwords and encryption codes, locked filing cabinets, limited access by family and improved security of the employee’s house, if necessary).

Employers should carry out an assessment of the data protection implications of working at home and homeworkers may need specific training on their obligations in relation to data protection, the security risks that may arise from a homeworking arrangement and how best to deal with them.

Equipment

The parties will need to consider what equipment will be required by the homeworker, if any, and who will pay for it. If company equipment is to be used, for example a computer with internet access, the employer will have to consider what systems need to be put in place to monitor its use.

One option is to provide the homeworker with a detailed company policy that makes it clear how email and the internet are to be used at home and for what purpose, the extent to which the computer may be used for personal reasons, how the employer will/may monitor the employee’s use of the computer and what would be deemed inappropriate use.

The policy should also address the issue of the appropriate use of social media and the employee’s obligations to protect the employer’s reputation, even from home.

Right to enter

The employer should expressly reserve the right to enter the employee’s premises in order to install and maintain any equipment, manage any company property and carry out any necessary risk assessments.

Health and safety considerations

Section 2(1) of the Health and Safety at Work etc Act 1974 makes it clear that an employer is responsible for an employee’s welfare, health and safety “so far as is reasonably practicable”.

In order to comply with this, an employer should be able to demonstrate that it has carried out a full risk assessment of the work activities carried out by all employees, including homeworkers, in order to identify potential problems and assess the overall degree of risk.

For homeworkers in particular, employers should also consider the following problems.

Stress

Homeworkers may find it difficult to establish clear boundaries between their work and home life, which could prove stressful. They may also find working from home lonely and alienating and feel that they are no longer part of a team.

Employers need to be aware of the potential for such issues to occur and be prepared to monitor the homeworker carefully, support them where necessary and integrate them as much as possible.

The key to overcoming this potential problem is maintaining good lines of communication with the employee and having regular reviews.

Equipment

While there is no legal obligation for an employer to supply equipment necessary for homeworking, they must ensure that any equipment they do supply is in good condition, suitable for purpose and regularly inspected in order to keep it in good working order. They must also ensure that the homeworker has sufficient lighting in the room set aside for business use and a properly configured desk and chair.

While an employer is responsible for the equipment it provides, the homeworker’s domestic electricity supply remains their responsibility, not that of their employer.

First aid

Employers are required to supply appropriate first aid supplies to homeworkers. Most homeworking will be low risk and usually a simple first-aid kit will suffice, but more could be needed depending on the particular nature of the work.

Homeworking requests – can they be refused?

There is no automatic right to work from home, however employers will need to consider any request for homeworking carefully as there is significant legal protection for employees in this area.

All employees with at least 26 weeks’ continuous employment have the right to request flexible working, which could include a change to working location. If such a request is made, an employer must follow the statutory procedure fully and ensure that any refusal is for one of the legally acceptable reasons cited by the Regulations.

Indirect sex discrimination

Currently, far more women than men make requests to work from home and, because of this, the rejection of a woman’s request for homeworking will likely give rise to a claim of indirect sex discrimination, unless it can be objectively justified (eg the case of Giles v Cornelia Care Homes (2005)).

Such discrimination claims are assessed by a tribunal on a case-by-case basis and the employer would have to show that refusing a request for a particular employee to work from home was necessary to achieve a legitimate business aim and was a proportionate response to the achievement of that aim. The employer can help to protect their position by suggesting a trial period.

Trial periods

Before embarking upon a homeworking arrangement, it is sensible for an employer to agree a trial period with the employee, with a right to require the employee to revert to office working at the end of the trial period.

Agreeing to a trial period essentially postpones the employer having to make a decision as to whether or not they will agree to a homeworking arrangement, but it can also assist in the defence of a discrimination claim (as in the case of Southall v London Chamber of Commerce and Industry).

Right to revert to office working

Once the parties have initiated a homeworking arrangement, it can be difficult to force the employee to return to office working, even if the employer has put an express term into their contract allowing them to do so.

An employer would have to show there was a good reason to exercise the contractual right to revert and terminate the homeworking arrangement in order to prevent the employee from arguing that the implied term of mutual trust and confidence had been breached and threatening a claim for constructive dismissal.

Katie Williams is an associate at Withers LLP. 

About Katie Richards

Katie Richards is an associate at Withers LLP.
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