Karen Holden from A City Law Firm looks at the various legal issues that have arisen as more people choose to work remotely or in a hybrid way after the pandemic.
Can an employee demand to work from home; can an employer force an employee to come into the office; what is the legal position and commercial reality given current practices?
You may have heard the emotive case that has divided the business world where a law firm is reported to be offering staff the ability to work from home for a 20% pay reduction. This has created a whirlwind of discussions among staff, businesses and especially employers who need to consider their approach and options wisely.
You cannot under UK employment law suddenly vary contractual terms without due consideration or consent and public opinion isn’t enough to support your position.
There is always going to be a good argument for and against matters such as flexible working with examples where it is beneficial and these where people feel it has failed them. Some staff are going to be more productive at home as they are not losing time travelling, worrying about child pick-up times and everyday distractions. However, there are also those who will not work the agreed hours, pop to the gym, miss calls and cause more work for colleagues as well as creating a challenge for employers who will need to monitor, action and address performance.
Some will save money on travel and say, for example, London rent, so it suits them, and they may give their company extra hours and commitment as a result. Then there are those who moved out and do not want to come back into work. This in a law firm could impact client satisfaction if they prefer face-to-face meetings, could mean lawyers not attending hearings and then networking, or mean overtime is only picked up by those in the workplace. This breeds resentment and causes friction between teams.
Employers need to engage carefully in creating policies, monitoring, building new structures and implementing wellbeing checks and much more.
Then you have the issue of training junior staff who need to hear, work alongside and gather experience, which is difficult remotely or from home. There is also the effect on those who do long hours from home because the lines between work and home are blurred, causing tiredness and mental wellbeing issues.
Thirty-six firms surveyed by Totem [which has published a return to work guide] who all have a hybrid working policy showed that a third of the firms preferred their staff in the office for 60 per cent of the time. Over 82% recognised a concern that homeworking breaks down cohesion in a team and almost all agreed trainees would be hit hardest by the lack of office time.
Whatever an employee feels works for them, might not work for their team members or the business. Employers need to engage carefully in creating policies, monitoring, building new structures and implementing wellbeing checks and much more. As such, whatever your opinion on this subject careful consideration commercially, practically and legally will be needed.
In short, this is very likely to be a breach of a person’s employment contract and they could face disciplinary action, dismissal or worse a breach of contract claim.
A contract will ordinarily stipulate the location, hours and expectations of where and when an employee should work so unless this has been previously varied the short answer is that they are tied to these terms.
Given current recruitment issues, employers are being cautious about denying requests so people don’t suddenly serve notice and look elsewhere.
Employers are trying hard to cross refer policies to contracts so remote working, working from home, using your own equipment and the likes are updated and robust, but matters have surpassed this such as overwork, mental illness and wellbeing and in-office-colleague issues are all now equally at play.
ACAS guidance on working from home and flexible working is set out here.
That is going to be a compromise between what both parties want and need – many companies have a hybrid working policy; some employees don’t want to be at home or can’t be; others don’t want to attend the office at all – so no one size fits all, but the larger the employer the harder it is to be selective so a careful strategy and process, backed by policies and contracts, is strong advised.
What if some staff are working from home but one staff member is denied this option? Whilst employers can put the needs of the business first and deny homeworking and flexibility on contractual grounds, they must be careful in doing so that they are not acting in a discriminatory manner.
So if you deny a working mum this, but offer single person the opportunity you are clearly going to face repercussions of gender discrimination, but sometimes discriminatory grounds are not so obvious and health, age, religion and much more must be considered.
An employee can apply for flexible working after 26 weeks of working with the same employer and, whilst it is not mandatory for an employer to offer this, they are duty bound to consider it and offer non-discriminatory reasons if it is being denied.
What can employees and employers do or not do, legally? What if people can stay at home and there is no genuine commercial reason for the business to deny this? What if the employer wants to reduce its commercial building footprint and place staff more at home, but people don’t want to work from home? What if people are still scared of travelling and being around large numbers of people?
So many new issues and questions have arisen over the last three years which makes the usual black and white law now ever so slightly greyer. It’s a new virtual, remote and paperless world and technology and business have been forced to look at their practices and adapt.
A case that has been prominent during this changing landscape is Accattatis v Fortuna, which was dismissed, because the test of unfair dismissal for an employer refusing homeworking is still a test of what the business needs, contractual terms and even if there was considered to a genuine risk/reason for the employee wanting to work remotely.
Absolutely, if the employees agree. The employer cannot do this as a unilateral variation, meaning they cannot do this if an employee does not consent to this change.
However, the leverage or compromise is that the employee cannot refuse to come back into the workplace so this is an agreement between them about how it could work mutually.
So, the meeting of minds should be what the employer wants vs what the employee wants – how do they reach an agreement so it is mutually beneficial.
The issue then becomes about staff who must be in the office; those who choose to be in the office; and those who can’t afford the 20% reduction. How do they feel? Are they left picking up the slack for those at home? How can you be sure they feel supported and benefit from their ongoing commitment? This is where the commercial and legal juggling act comes in.
A 20% reduction in salary means you can show those in the workplace the advantages afforded to them (as well as, say, gym access and drinks) compared to those at home.
If there is no reduction, employers could try and say that utilities and drinks are all paid for office staff. How far this will stretch I don’t know.
We have heard of staff not working in the office, in the City of London, but heading in for the gym membership and access to pool tables during working hours. This is clearly something to address as they are having all the benefits of being in the office, but are not benefiting from less travel and costs. Yet they may live outside the centre of London and pay a reduced rent or mortgage.
I have personally seen this cause serious friction in an office, and I agree this is unfair and needs to be addressed. As I understand, the company in this case is looking to deactivate memberships and benefits for those working at home or only on days they are working from home.
Again, no one can suddenly take away a benefit if it is contractual or offer some benefits, but not others if it’s part of the policy or it is discriminatory, say, if more of the working mums are at home. So, it’s all to do with the negotiation of terms: what you get for what I get/give you – it’s a contractual dance.
Another consideration is that any reduction in salary for homeworking staff does not make them fall under the minimum wage thresholds. Otherwise salaries can be reduced, if all parties agree. The change should be carefully documented and a period stipulated in which this is reviewed before it is permanently agreed.
There are actual health and safety risk assessment requirements that all employers need to consider for staff who are working from home. They also need to consider issues relating to using their own equipment; insurance and working times. Careful considerations as to how people are working and whether this is in line with the contract and policies on wellbeing and working time regulations need to be considered along with health and safety provisions as it is known that people can work long hours at home and assessments and policies should be there to protect both employer and employee.
*Karen Holden is founder of A City Law Firm.