Business

What are the legal implications for employers with regards to homeworking post-Covid? 


As we tentatively look towards a working life after Covid-19, staff surveys and consultations indicate that many employees are keen to secure long-term homeworking or hybrid working arrangements, allowing them to avoid commuting and continue to work flexible hours. Employers have seen the benefits of remote working too, and many will now be considering the practical implications of a shift to greater homeworking post-Covid.

Dealing with flexible working requests

Employees who have been employed for at least 26 weeks have the legal right to request flexible working, such as a change to working hours or working from home. Many employers are expecting a flood of such requests as soon as government or employer-imposed homeworking requirements are lifted, which could present a challenge in terms of dealing with competing requests.

Under the statutory flexible working regime, employers can lawfully refuse a formal flexible working request, provided they rely on one or more of the eight business reasons prescribed in law. However, to ensure that flexible working requests are accommodated fairly and consistently, employers may want to get ahead of the anticipated deluge of requests by taking a proactive approach now. This may include communicating the business’ future plans for remote working with employees and developing a homeworking strategy and internal policy.

Health and safety

The fact that homeworking arose as an emergency response to a global crisis lowered expectations, to some extent, of what is required of an employer in terms of physical and mental health obligations for employees working from home. However, employers retain health and safety responsibility for their home working employees and will need to consider permanent home working arrangements more carefully. As a minimum, employers should carry out risk assessments to review the suitability of the workstation and equipment used in the home. Most employers have been live to the impact of the pandemic, lockdown and forced homeworking on mental and physical health, with some offering access to support such as wellbeing resources or yoga classes.

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Gillian Moore: employers need to take reasonable steps to ensure employees can safely work from home
Gillian Moore: employers need to take reasonable steps to ensure employees can safely work from home

Obligations to mitigate these risks and provide appropriate support remain in place where arrangements are permanent and requested by employees. If homeworking is to continue long-term, then the need for employers to take reasonable steps to ensure employees can safely work from home becomes increasingly important.

Employee relations

A key practical consideration for employers considering a move to an entirely remote or hybrid working arrangement will be how to maintain positive interactions within employee teams. This will be particularly challenging where there is a mix of office and home working.

In the long term, employers should take particular care to ensure that home working arrangements do not compound equality issues. While Covid has forced even the most sceptical to try homeworking, it is likely to remain an option of particular benefit to employees with caring responsibilities or those who require reasonable adjustments due to a physical or mental disability. If office presenteeism is rewarded directly or indirectly (and whether deliberately or unconsciously) through work allocation, promotions or bonus awards, to the detriment of home workers, this could give rise to valid discrimination complaints and a more general sense of detachment from the workplace.

Commentators say that the pandemic has pushed many businesses forward to a position it would otherwise have taken 10 years or more to achieve, in terms of acceptance of home working and embracing flexibility. While some degree of rollback is inevitable, it is unlikely we will see many businesses that have shown themselves capable of facilitating remote working for almost a year now return entirely to the ‘old normal’.

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Gillian Moore is an associate in Shepherd and Wedderburn’s employment team. For more information, contact Gillian on 0141 566 7217 or at gillian.moore@shepwedd.com.



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