Remote Working - a legal minefield for employers

The shift to working from home being very common often requires careful consideration of existing contractual terms and potential variations. Employers must navigate both express and implied terms while maintaining clear documentation of any changes.

Contractual issues and changes

Any modification to working arrangements should be properly documented to avoid future disputes and provide clarity for both parties:

• Place of work clauses - standard employment contracts typically specify a main workplace. This needs updating to reflect home working arrangements, including any hybrid requirements and frequency of office attendance.

• Hours of work - remote working may require more detailed provisions about availability, core hours, and flexible working patterns to ensure business needs are met while maintaining work-life balance.

• Expenses provisions - clear terms about who bears costs for home office setup, ongoing utilities, and equipment maintenance. This includes internet, phone, and other necessary tools.

• Performance metrics - specific, measurable criteria for assessing remote work performance, including communication expectations and productivity measures.

• Returning to the office - the issue of requiring employees to return to office-based working has become increasingly contentious and legally complex. Post-pandemic, many employees view remote working as a contractual right or legitimate expectation, making mandatory returns challenging.

Requiring employees to start working in office again

Employers considering mandatory office returns must carefully evaluate their legal position. If remote working has become an established pattern, it may have become an implied contractual term through custom and practice. This is particularly likely if:

• The arrangement has continued for a significant period

• There was no clear communication about temporariness

• Employees have made life decisions based on remote working

• The business has promoted or endorsed remote working benefits

Depending on agreed contractual terms and any policies about working from home (which may state it is always at the employer's discretion) employers should strategically plan for possible resistance or formal dispute. A sound approach will include :-

• Clear, documented reasons for requiring office presence

• Evidence of business need or performance issues

• Impact assessment on different employee groups

• Consultation Process

• Reasonable notice periods (typically 4-12 weeks)

• Phased return options

• Clear communication strategy

The dilemma for employers is that a fully open approach could be interpreted as admitting that the employee has a right to work from home, so it is advisable to seek legal advice on whether discussions, consultations or negotiation should be expressly "without prejudice" which means exempt from being produced by either party in evidence at court or tribunal.

Employee rights to flexible working

Under English law, employees with 26 weeks' service have the right to request flexible working once per year.The right to flexible working means employees can request changes to working hours (e.g. reduced hours, compressed hours), working times (e.g. different start/finish times) or place of work (e.g. home working, different office location)

The employer must consider the request in a reasonable manner within 3 months of the request and can only refuse based on statutory grounds.

This intersects with flexible working rights in 2 ways. First, employees who've been working remotely can make formal flexible working requests to continue doing so. Second, if remote working has become an established pattern over a significant period, it may have become an implied contractual term through custom and practice. In such cases, forcing office return could breach contract.

Working from home legal issues and risks for employers

Key risks for employers with remote working include :-

• Data security & privacy - data breaches from unsecured home networks, unauthorised access to sensitive information, family members overhearing confidential calls, improper disposal of documents, GDPR compliance risk issues with data transfer.

• Employee monitoring - privacy law breaches from excessive monitoring, employee consent requirements, need to justify monitoring measures, discrimination risks in selective monitoring.

• Equipment and technology - liability for accidents with company equipment, insurance coverage gaps, data security on personal devices, software licensing compliance.

• Health & safety - employer liability for home workplace, DSE assessment requirements, accident reporting, mental health and stress management.

• Performance management - difficulty measuring productivity, training difficulties and team cohesion challenges.

• Legal risks - custom and practice rights developing leading to contractual variation claims and risks of discrimination or constructive dismissal risks if employer demands return to office.

Monitoring employees who work from home

Employers can legally monitor employees working from home but must follow strict requirements. They must inform employees about the monitoring, its purpose and extent through a clear written policy. Monitoring must be proportionate and justified by legitimate business needs. Employers need employee consent if monitoring personal devices used for work. The policy should cover what is monitored (emails, internet use, keystrokes etc.), how data is stored, and how it's used. Excessive or covert monitoring risks breaching privacy rights, employment law, and data protection regulations. Best practice is to conduct a data protection impact assessment before implementing monitoring.

Discrimination issues

Discrimination claims relating to work from home can involve allegations of indirect discrimination regarding protected characteristic and reasonable adjustments for disabled employees.

How we can help

• Contract and policies drafting and review

• Risk assessment

• Clear employee messaging.

• Consultation process

• Dispute resolution