November 22, 2021

The importance of employers having a clear policy governing all types of remote working should be self-evident. We would suggest that the importance of having a policy in place is heightened where employers intend to deal with homeworking and hybrid working on a discretionary, case-by-case basis. The following tribunal cases are illustrations of how a lack of clarity over employees’ entitlement to work from home led to disputes: Soluade v DOCS International UK Ltd ET Case No.3323902/17: the employment tribunal considered whether a hybrid worker was subjected to harassment when a manager twice asked her to work full time in the office.

S worked from home two days a week. There were concerns about her performance, and her line manager, B, requested on two separate occasions that she work in the office five days a week, and stated that her homeworking arrangement would be kept under review. Following her dismissal for lack of capability, S brought a claim of race-related harassment under S.26 EqA, among other things. She relied on B’s conduct in relation to her homeworking arrangements as an act of harassment. The tribunal accepted that B’s request that S work five days a week in the office and her comment that homeworking would be kept under review did amount to unwanted conduct for the purpose of S.26. B understood her homeworking to be an entitlement whereas DOCSI Ltd asserted that it had discretion to withdraw the arrangement.

The tribunal noted that B’s understanding was reinforced by her communications with the recruitment consultant before starting her role and with a member of DOCSI Ltd’s HR team. It also noted that no written guidance on homeworking was provided until after this issue had arisen in B’s case, and that the difference in understanding played a part in the difficulties between S and B. However, it went on to conclude that B’s conduct did not have the purpose of violating S’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, and nor was it related to her race in any event in Morley v London Borough of Waltham Forest ET Case No.3202020/18: the Council’s policy was that homeworking, unlike formal flexible working arrangements, had to respond to business needs. While working from home would be permitted, it could be cancelled or changed at short
notice and should not be used for fixed commitments such as childcare. Despite this, M had a long-standing arrangement with her line manager, I, that she would work at home on Mondays, which enabled her to pick her son up from school. When a new line manager, HM, took over from I, she was less indulgent. She sought to apply the formal policy and require M to come into the office five days a week, with homeworking only to be allowed on occasions by specific agreement. HM made the point to M that working from home should not be used as a substitute for childcare provision.

At this point, M already had a high level of absence and this change of management tone led to substantial further periods of sick leave. M was eventually dismissed for poor attendance and an employment tribunal rejected her claim of unfair dismissal, among other things. The tribunal noted that the withdrawal of homeworking completely upset M’s life and she found it unbearable to be managed by HM. However, in its view, M’s reaction was disproportionate to reasonable management measures.

Any remote working policy will need to define the status and scope of homeworking, hybrid working or remote working. For example, it might make clear that hybrid working is an informal flexible working arrangement which allows the employee to split his or her working time between the workplace and the home (or another agreed remote working location), and that the specific arrangements  for each employee will depend on the employee’s role and responsibilities. If the employer is allowing working from home on a discretionary basis, this should be made clear, as should the circumstances in which, and the procedure by which, the arrangements may be terminated.

The employer may wish to provide that working remotely is unsuitable where, for example:

  • the role involves a high degree of personal interaction with colleagues or third parties, or involves equipment that is only available in the workplace
  • concerns over the employee’s performance or productivity have been identified in an appraisal and/or by the employee’s line manager
  • the employee has an unexpired warning, whether relating to conduct or performance
  • the employee needs training and/or supervision to deliver an acceptable quality or quantity of work.

The policy might also specify some minimum requirements and obligations imposed on the employee. These might amount to the employee agreeing to:

  • have a suitable working environment at the remote working location that enables the employee to carry out his or her role effectively
  • continue to work contracted hours
  • work independently, be self-motivated and use his or her initiative
  • manage workload effectively and complete work to set deadlines
  • identify and resolve any new pressures created by working from a remote working location
  • adapt to new working practices, including maintaining contact with managers and colleagues
  • exercise flexibility to make changes to the hybrid working arrangement on
    the employer’s reasonable request, including to the days, times and location from which the employee works, to meet the needs of the business
  • determine any resulting tax implications
  • make arrangements for the care of any children or other dependants when working from the remote working location
  • attend the workplace on the employer’s reasonable request, such as to attend training or meetings
  • finance any travel and/or related expenses incurred when travelling to and from the remote working location and the workplace.

As to location of work, the policy might require the primary remote working location (and any later change of location) to be agreed with the employee’s line manager. It might impose some conditions, such as requiring the remote location to be within commuting distance of (and within the same country as) the workplace. The policy might also cover whether working abroad will be permissible. Some employers may want to specify that this will not be allowed, given the potential for compliance complications, tax issues, etc – see the box above.

The policy should address the potential for health and safety issues that may arise for employees working at home. It should make clear that the employee has the same health and safety duties as other staff when working from the remote location and must take reasonable care of his or her own health and safety and that of anyone else who might be affected by his or her actions and omissions. In light of its own obligations under health and safety legislation, the employer might reserve the right to carry out a health and safety risk assessment, whether remotely or by arranging a home visit, in order to identify any potential hazards at the remote location.

The policy should also specify that the onus is on the employee to ensure that his or her working patterns and levels of work when working remotely are not detrimental to the employee’s health and wellbeing, and that any concerns about this, or any health and safety issue, should be raised with the employee’s line manager.

There is no legal obligation on an employer to provide the equipment necessary for remote working. The policy might therefore state either that the employer will provide equipment and make all necessary arrangements for installing and maintaining it, or that it is the employee’s responsibility to ensure that he or she has sufficient and appropriate equipment for working from the remote location. This is subject to particular considerations that might arise if the employee has a disability and requires specialist equipment as a reasonable adjustment.

Given employers’ obligations and potential liabilities under data protection law, they will probably want to have tight controls over an employee’s
access to IT systems and confidential information from the remote location. The policy should therefore emphasise the employee’s responsibility for ensuring the security of confidential information in the remote working location and when travelling between there and the office. It should set out steps that the employee must take in order to preserve data security and minimise the risk of data breaches or loss of confidential information, such as:

  • changing passwords at specified intervals
  • using a designated VPN and/or multi-factor authentication to access the employer’s computer systems  using encryption and restricted access to protect personal data, especially sensitive personal data
  • installing up-to-date antivirus and malware protection on any personal device or computer used for work
  • not keeping confidential information on any personal device
  • keeping work data and personal data separate on any personal devices used for work purposes
  • making all work-related calls through the employer’s designated video- conferencing software
  • maintaining a private space for confidential work calls
  • ensuring that any display screen equipment is positioned so that only the employee can see it, or a privacy screen is used
  • ensuring that any wireless network used is secure and network passwords are changed regularly.

Finally, in order to avoid issues of discrimination, unlawful detriment and unfair dismissal, employers should ensure that the policy is applied consistently, with objective reasons for any deviations in its application. Employers should consider providing guidance to line managers with the aim of improving the consistency of decision-making and emphasising the importance of this. identified in an appraisal and/or by the employee’s line manager:

  • the employee has an unexpired warning, whether relating to conduct or performance
  • the employee needs training and/or supervision to deliver an acceptable quality or quantity of work.
  • The policy might also specify some minimum requirements and obligations imposed on the employee. These might amount to the employee agreeing to:
  • have a suitable working environment

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