Will working from home remain a perk or become a right?

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Employees have had the right to request flexible working – including working from home – for some time now. Remote working during the lockdown has prompted many to consider whether they’d like to continue doing so in future. Tatevik Grigorian looks at what arrangements are in place in the UK and how they compared with what forward-thinking economies in Finland and Germany offer employees. 

As the coronavirus pandemic persists, employees are getting used to working from home and many are noticing benefits including avoiding stressful, time-consuming commutes; saving money on travel and food; managing work more efficiently; fewer interruptions; and seeing their children more often.

After the pandemic passes, it is expected there will be a cultural shift towards working from home as a norm and many employees will want to do this, at the very least for part of the week. But where do they stand legally?

Different countries have different approaches to homeworking. In some, the right to work from home is provided by law; in others it is entirely up to an employer-employee agreement. Recent developments in this area in Germany and Finland shine a light on the UK’s approach.

Germany

German employment laws are among the most developed in the world and strongly pro-employee. Yet, there is no legal entitlement as such to work from home, except where employees cannot reasonably be expected to attend the workplace, for example due to their physical condition or in order to care for an elderly relative (but not children).

Prior to Covid-19, 12% of Germans worked from home – this being dependent on an employer’s willingness to allow homeworking and with no recourse to the law if an employer is unreasonably reluctant to agree a flexible arrangement. During the current pandemic the number of homeworkers has risen to 25%. This has made it possible to test the efficacy of homeworking on a large scale. The result? Success.

The German Ministry of Labour and Social Affairs (BMAS) recently proposed that where technically possible, employees should be able to work from home, even after the restrictions have been lifted. The proposal follows a study by BMAS, which shows that 40% of Germans would like to continue to work from home at least occasionally.

Labour minister Hubertus Heil commented on how successful working from home has been across Germany and saying: “Everyone who wants to and whose job allows it should be able to work in a home office, even when the corona pandemic is over”. He added that employees should be free to either switch completely to working from home or just for one or two days a week.

The proposal has yet to be tabled and at present it is not known whether it will be enacted due to significant resistance from businesses. But if passed, the right to work from home would become a statutory entitlement for all employees in Germany.

Finland

Flexible working has been embedded in Finland’s working culture for decades, stemming from a deep-rooted culture of trust, equality and pragmatism. Finland adopted flexible working laws through its Working Hours Act in 1996. This allowed employees, among others, to start or end their working day three hours earlier or later than the standard.

By 2011, 92% of employers in Finland were allowing employees to adapt their working hours, making it the lead country with the most flexible working schedules in the world.

While the rest of the world is catching on, Finland is taking further steps to stay ahead of the curve. It has recently amended its legislation to allow even more flexibility. The Working Hours Act 2020, in effect from January of this year, allows employees to decide not only their working hours but also their place of work. If an employee wants to spend six months in Spain while continuing to work for their Finnish employer from a sunny resort, that is no problem.

Flexible working has been embedded in Finland’s working culture for decades, stemming from a deep-rooted culture of trust, equality and pragmatism.”

Additionally, the amended Act allows employees to determine how to allocate at least 50% of their working time and introduces a statutory working hours bank. This enables an employee to save additional and overtime hours, flexi hours, accrued time off, holiday bonuses and similar benefits, and withdraw free time from the accrual later.

Finland has truly understood that people are more productive when their working schedule accommodates different demands on their lives and even personal desires.

UK

Since 6 April 2003, working parents in the UK have been entitled to request flexible working for childcare reasons. From 30 June 2014, the right was extended to all employees in the UK with at least 26 weeks’ continuous service.

Section 80F of the Employment Rights Act 1996 gives employees the legal right to request flexible working for any reason. This can be to request a change to full-time or part-time work, job-share, work from home, or a change of working days or hours.

Employers are legally obliged to consider flexible working requests in a “reasonable manner” and may only refuse these on one of the prescribed eight grounds. Unjustified refusal could lead to claims for sex or disability discrimination, and/or unfair constructive dismissal.

Although employees in the UK have a statutory right to request flexible working, prior to Covid-19 only around 5% of its 33 million workers mainly worked from home. It is relatively easy for employers to justify a refusal on one of the prescribed grounds and there is no recourse for employees other than for those with relevant protected characteristics.

Many predict however, that after the current crisis, flexible working will become the new norm and we will see a shift in the working culture. More employees are likely to ask for flexibility to work from home, including at the  recruitment stage, thus potentially forcing employers to open up to the idea and consider such requests more favourably than before.

Barclays Bank is already looking into a more de-centralised approach to staff working. The lockdown restrictions created the perfect platform to test out concurrent remote working for 70,000 out of its 80,000 workforce.

Similarly to Germany, the result has been an unexpected success. It remains to be seen whether this shift will lead to greater monitoring of employees working from home and how this will be reconciled with their right to privacy, but the long-term impact of Covid-19 on working trends seems inescapable.

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Tatevik Grigorian

About Tatevik Grigorian

Tatevik Grigorian is a lawyer at iGlobal Law, the international employment law subsidiary of Wedlake Bell LLP.

2 Responses to Will working from home remain a perk or become a right?

  1. Avatar
    Gabriel A carlos 7 May 2020 at 9:05 pm #

    I wish to enforce the payment of serverance payoff from my former employer. DO you handle employment law ?.

  2. Avatar
    Lorna Davidson 11 May 2020 at 11:03 am #

    There is no doubt that flexible working is the future. We should be careful not to confuse flexible working and working from home they are not the same thing. Flexible working does and should continue to occur outside of the home; it’s about individuals making the choice about when they work and what type of work they do.

    I am a big supporter of home working but I also believe that we do need human contact some times. As always it is about creating a balance and an organisational culture that supports this.

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