As the summer draws to a close, employers in all sectors are beginning to welcome staff back to offices and other physical workplaces. However, the pandemic has shifted expectations on all sides, with agile working (involving a mix of home and office working) increasingly becoming the norm in certain sectors.
Working from home has given many a better work life balance and employees have capitalised on the stamp duty holiday to move, in many cases, out of cities and often further from their place of work. Home working avoids potentially lengthy commutes which, given the current rise in infection rates can be a stressful (and expensive) endeavour.
In many sectors, the recruitment market is candidate driven and anecdotal evidence suggests that candidates are favouring employers with a flexible attitude to either full or part time working from home. Employers who fail to adapt may struggle to attract and retain staff.
Employers had to be flexible in the face of the pandemic particularly when office working was prohibited in all but a few core sectors. Out of necessity, many simply organised working from home arrangements on an ad hoc basis without making permanent changes to employees’ terms and conditions of employment. However, as we adjust to the new normal, employers should carefully consider whether contracts need to be changed and, if so, how to best tackle this challenge.
Contracts must specify key terms such as those relating to the employee’s place of work and, if the employee can or may be required to work at various locations, details of that and the employer’s address must be provided (section 1, Employment Rights Act 1996). Pre-existing flexibility clauses, allowing employers to change a place of work, may not be of much use. Case law suggests that the courts will interpret these clauses narrowly meaning that they are unlikely to assist an employer seeking to introduce agile working for the first time.
This said, in many cases it will be easy for an employer to make any necessary contractual changes to facilitate agile working. An employee who is keen to work from home is likely to agree to a change which confirms, in writing, their right to do so. However, the task may be more challenging for those who find working from home difficult for whatever reason. A case-by-case approach should be taken with consideration being given to each employee’s circumstances and whether discrimination laws are, or could be, engaged. For example, it may be a reasonable adjustment to allow an employee with a disability to work from the office (or indeed from home) full time. Equally, younger employees (who are more likely to live in shared homes and perhaps have only a bedroom as a private space) may be indirectly discriminated against by a policy requiring them to spend much of their working time at home.
Agile working clauses need to be clear and should suit the needs of the business and the employee. If an employee has to work from the office and/or from home for a certain number of days each week or month, this should be clearly stipulated as should any exceptions to this: should the employee be obliged to come to work for client meetings and so on?
Whatever the specifics, early consultation with staff is essential if contractual changes are necessary. If an employer is looking to give employees the option to work from home should they wish to do so it may be that no contractual change is needed, though the employee should receive confirmation in writing of the new arrangements that apply.
Whether or not contractual changes are required employers would be well advised to have an agile working policy which gives clear guidelines for employees working at home and from the office. An agile working policy may cover all or some of the below:
- Whether the employee can be required to come to the office on their home working days (this may also be addressed in any new contractual terms);
- Can the employee work anywhere other than their home? For confidentiality reasons it would be common for employers to prohibit working in public spaces and there may be tax and legal implications in permitting UK employees to work overseas.
- Will any logistical or organisational steps need to be taken? For example will an employee need to inform their manager in advance of the days they wish to work from the office (which may be essential if there is limited desk space available)?
- What training, if any, will be made available to ensure employees working from home are safe? This may include training managers on how to effectively lead a remote workforce.
- Will remote risk assessments need to be undertaken or renewed and, if so, how frequently will this happen?
- How to keep remote workers engaged, which may include ensuring weekly meetings via video calls and frequent check ins so that the employee feels part of a team and so that any issues can be quickly identified and addressed.
- What happens if there are issues of performance or conduct – how will the capability or disciplinary process be handled and will any proven poor performance or misconduct result in a limitation (or removal) of an individual’s right to work from home?
- Employers should ensure that any policy is designed with regulatory issues in mind which may require oversight of an employee’s work.
The recent steep increase in agile working is likely to be here to stay and there is a lot for employers and employees to consider. It is well worth investing time into starting off on the right foot by making sure that the right legalities and practicalities are in place to smoothen what could potentially be a bumpy road back to the office.
Please contact us to discuss the specific needs of your business and to ensure the necessary documentation is in place.
The contents of this briefing are for information purposes only. All circumstances are unique and the information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.
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