Remote working: five legal issues you might have missed

mobile-working

More and more employees now work outside the office, whether for better work-life balance or to match the demands of work. Employment lawyers Hilary O’Connor and Cerys Williams highlight five things to consider with remote working.

Remote working is now a common feature of the business world, whether through ad-hoc communications “on the go” or via more formalised working arrangements.

However, the everyday normality of mobile working should not mislead employers into thinking it is legally straightforward. While the flexible workplace has definite benefits for all, a few basic precautions are needed to avoid some less obvious pitfalls.

Place of work problems

Health and safety obligations do not stop at the office door. Employers need to assess the suitability of the working environment at home by (at the minimum) conducting a workplace risk assessment and ensuring that employer’s liability insurance extends coverage to home working.

Likewise, thought should be given to ergonomic horror story scenarios involved when employees work on the move, hunched over laptops or typing long emails on mobile devices. Useful guidance notes and leaflets can be found on the HSE website, but bear in mind that just providing documents is unlikely to discharge your legal duties, unless this is supported with appropriate training.

Turning a home into a place of work can also raise non-employment issues like whether or not arrangements breach planning permission or the terms of any household insurances.

Dedicated workspaces could even change the tax status of the property. Employers are well advised to flag these potential implications to homeworkers and to clearly communicate that it is the individual’s responsibility to understand the impact on their property and related obligations.

Redundancies and dismissals

While our working practices may no longer depend on geography, legal rights and obligations largely still do. Legal headaches can develop in respect of atypical workers upon redundancy, dismissal or other legal trigger points.

Redundancy is a location specific concept; it occurs where a particular site closes or where an employer’s need for work of a particular type ends or reduces in the place where the employee was employed.

The place of work also affects pooling and selection and, for larger scale restructuring, it will also be relevant which “establishment” the mobile worker is assigned to.

For mobile workers, their place of work will be determined by reference to the facts but also to what their contract says.

Employers can improve their position by ensuring that contracts specify not just the employee’s place of work but also to which base or HQ they are assigned.

Most importantly, mobile workers must be considered at an early stage of redundancy planning, to pre-empt challenges over pooling and consultation.

Particular care is also needed with employees who are working remotely from overseas. In the recent case of Lodge v Dignity & Choice in Dying, an employee was held to have UK unfair dismissal and discrimination rights despite not having set foot here for 15 years. A key factor was simply that her work supported a UK business.

Remote management

As with many long-distance relationships, when managing remote workers extra effort can be needed to keep everybody engaged and aligned.

Organisations need to take proactive steps to ensure and maintain sufficient access to training and promotion, corporate “visibility”, integration and social involvement.

In many organisations, the number of employees working remotely or from home may be disproportionately female, so failure to ensure appropriate support and development for these workers may amount to actionable discrimination.

Aside from the practicalities, a watchful eye is needed to combat stereotypes about home workers or even just a lack of rapport that may subconsciously influence decision-makers.

Confidentiality and data security

While most organisations have general data protection and confidentiality obligations on their radar, mobile working poses additional challenges and the consequent risk of breaching duties owed to third parties.

Security and encryption of mobile devices is an obvious action point, but thought should also be given to restricting the ability to print, download or remotely access particularly sensitive information.

Employees should also be given guidance about inadvertent disclosure though being overheard or overlooked in public spaces and of the implications of taking devices overseas, which could amount, in law, to a cross-border data transfer.

Working time

The ability to work away from the office also blurs the line between work time and down time. The curse of the mobile age is the constant expectation of immediate response to emails and voicemails, including during holidays.

Needless to say, this may be a breach of employees’ rights under working time laws if it is not truly voluntary but results from an (unwritten) office rule.

Make sure that employees have signed an opt out of the 48-hour week, if necessary, but bear in mind that minimum daily and weekly rest periods and annual leave cannot be waived.

The only real solution is to ensure client and colleague expectations are managed and that workplace culture respects the legal limits.

About Jo Faragher

Jo Faragher has been a business journalist for 15 years, working in commissioning editor and editor roles for the past 10. A regular contributor to Personnel Today, she has also written features for the Financial Times, and supplements for The Times and The Guardian.
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