Policy clinic: managing home workers

About one in four employees work from home on an occasional basis. This poses some serious legal concerns for employers who should have policies in place that address them. Alison Loveday assesses the issues. 

Homeworking risk management
Homeworking justification
What should be in a homeworking policy?
Key homeworking issues to address
Letter agreeing to a trial period of homeworking

In the current economic climate, with businesses cutting costs and maximising productivity, employers may be more amenable to requests from workers to carry out some or all of their duties from home. This may be in the hope that home working will reduce costs to the business and thus avoid or reduce the need for redundancies. It may also cut employees’ costs. A recent Labour Force Survey shows more than 25% sometimes work at home and this percentage is growing. This raises important issues that employers need to address.

Homeworking risk management

Home working should be considered from a risk management perspective so if, for example, your workplace is f looded, employees can work from home. Home working may also be widely used to enable workplaces to manage and deal with epidemics such as swine flu.

For this to work effectively, it will be important for the business to have already considered how this arrangement will work in practice, what arrangements and equipment need to be put in place and for training to be provided.

There is no automatic right for employees to work from home, but certain employees do have the benefit of statutory protection, which should be taken into account. For example, those with specific parental responsibilities can apply for flexible working arrangements, which could include working from home. With the recent increase in the number of employees who can apply for flexible working, this may similarly increase the numbers requesting home working.

While some employers may be reluctant to embrace home working, they should be aware that a refusal to allow it could constitute indirect sex discrimination if it has a disproportionate effect on one gender. Disability discrimination may be relevant if home working would constitute a reasonable adjustment by the employer under the Disability Discrimination Act 1995 to prevent a perceived disadvantage being suffered by a disabled employee.

Homeworking justification

To minimise the risk, employers should be able to justify the reasons why the request has been refused. To assist, employers could consider trialling home working. An employer is much more likely to be successful in defending a refusal to allow an employee to work from home if they have trialled the process, rather than if they have assumed that home working will simply not work.

To avoid claims for discrimination, employers should also be careful that the salary and benefits package provided to a home worker is not less favourable than those provided to other employees. Employers should also consider that if benefits are provided with employment, employees who are home workers should also have access to those benefits or facilities. They may wish to consider compensating home workers who cannot take advantage of the benefits.

What should be in a homeworking policy?

Any employer entering into home working arrangements will need to address a range of practical issues that a policy takes account of.

One such is the question of the employee’s contract of employment. The usual standard contract clauses may not be sufficient to encompass home working. Apart from the obvious provisions relating to place of work and so on, employers should consider whether other amendments are required, such as a right for the employer to enter the employee’s home to service its equipment.

The contract should state where the employee’s principal place of work is (ie their home or their employer’s premises) and include a clause that enables the employer to insist that the employee comes into the workplace if necessary. The employee’s hours should also be stated and whether these hours will be strict, if there is any ‘core time’ or whether the hours are completely flexible.

Other areas to address include considering whether any special insurance arrangements are required and taking appropriate measures to ensure confidentiality of information and comply with the Data Protection Act 1998. Employers also need to decide whether any special equipment should be provided and review the health and safety implications of the arrangements.

They are obliged to carry out health and safety at work assessments, which accordingly includes an assessment of an employee’s home for this purpose. This could be carried out by an inspection visit or by a questionnaire completed by the employee, which can be followed up if any specific risks are highlighted.

At the outset of entering into homeworking arrangements, employers should give serious consideration to a trial period in which to assess whether the arrangements are working, with a right to require the employee to revert to office work if they are not satisfactory.

Employers, if they wish, should make it clear the arrangements are temporary and include an assessment or review date and a formal termination date of the trial period.

They may wish to go further and include a right to require the employee to revert to office work on request, long after the end of the trial period. This may, however, prove difficult to enforce in practice.

If several staff request to work from home, not all of which can be granted, there is no clear statutory guidance as to how the requests should be dealt with. Practically speaking, employers should firstly review the requests submitted by those employees who may have statutory rights to be considered, for example disabled workers, those eligible to make flexible working requests and those who may have a claim for discrimination.

While there are a number of benefits, there are also reasons why an organisation may be reluctant to embrace home working. In considering, therefore, whether to grant a request for or offer home working, it is important that a balanced approach is adopted. The decision should also be kept under review, as the needs of the business or the individual employee may change over time.

Alison Loveday, head of employment, Berg Legal