Homeworking in a post-COVID world: legal implications for employers

As we tentatively look to a life after COVID-19, many employees would like to continue enjoying the benefits of homeworking. What are the practical implications of this longer term shift to homeworking for employers? Gillian Moore, Associate in our employment team, explains.

15 April 2021

For many employers and employees, the COVID-19 pandemic has provided the opportunity for an immersive trial run of home working. As we tentatively look towards a working life after COVID, many employers are conducting staff surveys and consultations to gather feedback on employee desires and expectations regarding working arrangements.

The results in most cases indicate that employees are keen to hang on to the benefits of homeworking, whether that is greater flexibility in working hours or avoiding the commute, and will be looking to secure a permanent homeworking or hybrid working arrangements. Employers have seen the benefits 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. This often involves requesting a change to working hours, but also covers requests to work from home. Many employers are expecting a flood of flexible working requests as soon as any requirement to work from home imposed by the government or employer is lifted. One of the biggest challenges for employers handling flexible working requests pre-COVID was dealing with competing requests. This could often be resolved by taking a strict ‘first come first served’ approach or consulting with all affected employees with a view to reaching an agreement that accommodates everyone.

This is not always easy, however, particularly in smaller teams. The statutory flexible working regime recognises that there are valid business reasons why flexible working arrangements cannot always be accommodated, and employers can lawfully refuse a request, provided they rely on one or more of the eight business reasons prescribed in law. While employers cannot sidestep the statutory flexible working regime if an employee wishes to make a formal request, they could get ahead of the anticipated deluge of requests by taking a proactive approach now. This may include communicating with employees about the business’ plans in relation to future remote working, and developing a homeworking strategy and internal policy to ensure that requests are accommodated fairly and consistently.

Health and safety

Employers have already been wrestling with their obligations in relation to the physical and mental health of their employees while working from home. The fact that homeworking arose as an emergency response to a global crisis has, to some extent, lowered expectations of what is required of an employer. However, employers will need to consider permanent homeworking arrangements more carefully. Even if employees choose to work from home, their employer retains responsibility for their health and safety. 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 risk of stress, isolation and the impact on mental health during the pandemic and periods of lockdown exacerbated by forced homeworking arrangements. Obligations to mitigate these risks and provide appropriate support also remain in place where arrangements are permanent and implemented at the request of employees. The experience of almost a year of consistent homeworking has brought additional challenges in managing employees’ physical well-being. Employer-provided yoga classes and “at your desk” exercises are becoming popular. If homeworking is to continue in some form 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 homeworking within teams. In the long term, employers should take particular care to ensure that homeworking 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 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 them 10 years or more to achieve, in terms of acceptance of home working and willingness to embrace 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’.

Gillian Moore is an associate in Shepherd and Wedderburn’s employment team. A version of this article first appear in The Scotsman.

Shepherd and Wedderburn’s COVID-19 Advisory Group is working with clients in every sector to support them through the challenges posed by the Coronavirus pandemic. For more information or to seek tailored advice, please contact one of our specialists: Gillian Moore (employment and equality), Kevin Clancy (health and safety), Andrew Winton (personal injury and litigation) and Joseph Fitzgibbon (data protection).