An employee has asked to work from home. As we don't allow any other employees to do this, can we refuse her request? If, on the other hand, we agree to it, who would be responsible for any equipment she might need and for ensuring that her working conditions meet health and safety requirements?
When this individual is asking to work from home, it is, in essence, a request to amend her contract of employment. As such, the employer has no legal obligation to agree save insofar as it might be acting unlawfully.
The principal way in which an employer could be attacked legally for saying no to such a request is in the area of indirect sex discrimination. In legal terms, it is exactly the same argument which a women returning from maternity leave, wishing to work part-time, would bring.
For a claim based on indirect sex discrimination to succeed, four hurdles must be jumped by the claimant. First, the employer must be applying a 'requirement or condition' (soon to be a 'provision, criteria or practice'). This requirement must be one that:
- impacts more upon women than men
- the employer cannot objectively justify on business grounds
- that the individual cannot comply with to her detriment.
As with cases involving maternity returners, a tribunal is likely immediately to agree that a decision that someone must be present in the office constitutes a requirement or condition, and that this impacts more upon women than men (since women tend to take up flexible working patterns much more than men).
The battleground, from a legal point of view, will be whether or not the employer has sufficient arguments to justify refusing homeworking or teleworking and whether the requirement or condition is one with which the particular worker cannot comply to her detriment.
Employers will be able to point to the increased costs and potential risks in terms of insurance and other matters as part of an argument to justify its refusal.
They may also be able to demonstrate that the woman in fact could comply with a requirement to work in the office in the particular circumstances. In short, therefore, an employer has a number of potential arguments to justify a claim that in refusing to allow the woman to home or telework, it is acting perfectly lawfully.
The provision of equipment is largely a matter of negotiation between the individual and the employer, although in practice it is common for the employer to provide the appropriate equipment.
In agreeing terms, employers would be well advised to ensure that either its own policy of insurance is extended to cover the property outside its own premises or that the homeworker has adequate insurance cover for the property in the event of any theft or damage.
If the latter, the employer should stipulate that it has the right to see the details of the relevant insurance and reserve the right to inspect the policy and/or require additional insurance to be provided by the employee at any time.
The employer should also ensure that its compulsory employers' liability insurance covers employees working at home. Ensuring that appropriate or additional security measures are in place at the employee's home is another issue.
Employers should consider the following further safeguards:
a incorporating a trial period for the homeworking or teleworking to see whether it works sufficiently well to continue. The employer should reserve the right to require the individual to revert to office working if the trial period does not work out to its satisfaction.
b reserving the right to require the individual to attend its offices at reasonable notice for meetings, briefings, reporting, technical queries, training sessions or disciplinary meetings. In such circumstances, it would be normal to reimburse travel expenses.
c bearing in mind that all normal statutory rights would apply to homeworkers or teleworkers, including the rights on a minimum wage, equal pay, unfair dismissal and health and safety matters. An employer has statutory and common law duties regarding the health, safety and welfare at work of its employees including those working from home.
Under the 1974 Health and Safety at Work Act, an employer is not under a duty to maintain the place of work or access to it if the place of work is not under the employer's control. However, an employer is under a duty to provide and maintain a safe working environment, safe equipment and safe systems of work. It is also obliged to ensure that necessary training information and supervision is given to enable a home or teleworker to use equipment safely.
The employer should therefore ensure that the equipment used at home is installed properly by qualified workers and that it is regularly inspected, maintained and serviced. An employer also has a duty to carry out risk assessments both to the employee in terms of the homeworking arrangements, and also in relation to the health and safety of those who may be affected by the conduct of the business, which may include the homeworker's family.
d establishing that it has the right to enter the homeworker's home to install, maintain and service equipment, to carry out risk assessments and also to recover its property on the termination of the homeworker's employment. This may require the homeworker procuring the consent of the owner or tenant of the property where the work is carried out.
e giving careful thought to how to monitor the performance of a home worker.
f including an express confidentiality provision in the contract. The employer should always be careful to label confidential information likely to sit around at the employee's home as such.
Russell Brimelow is head of the employment group at solicitors Boodle Hatfield.
Tel: 020 7318 8135
Explore the possibilities
Responses to questions about homeworking can usually be divided into two main topics: Employment Law relating to a change in the contract of employment, and the statutory duties of management and the employee towards the health and safety of the homeworker. There is however a third topic — in practice the real issue and, perhaps, more important than the two questions raised above. It looks at the implications, advantages and disadvantages for both the employee and employer of changes in accepted working practices. Is the company ready to accept homeworking and, if so, how do we make homeworking a success?
As the costs of employing staff generally make up 60 per cent of overheads, it is obviously important to ensure that the employee is adequately trained and suitable for homeworking. Not everyone is suitable and there are companies who will suggest ways — such as psychometric testing — of identifying likely candidates with the correct personality or traits. While some view such testing with scepticism, others feel that it is an invaluable staff selection tool.
Companies, who have interests in homeworking, for example BT, have produced helpful literature, and their booklet Teleworking Safety details experiences of some of their homeworking and teleworking employees.
While it is also important to identify suitable homeworkers, managers must also consider the effects on company culture.
Homeworking and empowerment is generally related to flattened management structures and managers should consider the effects on office-based colleagues and accept that it is more important to fit the person to the job and not the job to the person.
Homeworking arrangements are complex and involved and the management of personnel within such environments can be difficult. Due care and consideration should be given to the working practices, the environment and the individual in the same way as an employer should manage their on-site employees. There must be a win-win situation for both employer and employee.
Source
The Facilities Business
Postscript
Rob Hutton is planning supervisor at project management consultancy the Back Group
Tel: 0121 200 1424