Working from home: should it be a legal right?

Jemma Pugh and Hannah Cohen consider whether the UK’s flexible working legislation could be amended to bring it more in line with the Dutch approach

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Developments in the Netherlands that establish a legal right to work from home have created something of a media frenzy at the prospect of this being the first country to preserve an employee's right to work from home in statute. However, the legislation (which, at the time of writing, is awaiting final approval by the Dutch senate) makes it compulsory for employers to consider employee requests, where the relevant profession allows it, rather than making working from home an immediate unconditional right for all at the outset of the employment relationship. 

In this respect, the law in England and Wales is not too far behind. Currently employees with at least 26 weeks' continuous service have the legal right to request flexible working. This could, and often does, include a request to work from home for some or all of the working week. 

There is a statutory procedure that must usually be followed, which involves the employee making a formal written request, which the employer then has three months to consider. The employer can only refuse a request for one (or more) of eight reasons specified in the legislation, which are:

  • the burden of additional costs;

  • detrimental effect on ability to meet customer demand;

  • inability to reorganise work among existing staff;

  • inability to recruit additional staff;

  • detrimental impact on quality;

  • detrimental impact on performance;

  • insufficiency of work during the periods the employee proposes to work; and

  • planned structural changes.

  • Once an employee has made a statutory request in this way, they are prevented from making another for 12 months. Any changes will need to be captured by way of a variation to their contractual terms.

    The Department for Business, Energy and Industrial Strategy recently proposed various reforms to the legislation, including the removal of the 26 weeks' qualifying service requirement, such that this would become a ‘day one’ right and therefore be more similar to the new Dutch law. The result of government consultation on this is still pending. 

    While the legislation in the Netherlands and in England and Wales does not grant an automatic right to work from home for employees, these developments for flexible working ultimately make it difficult for an employer not to grant some flexibility, bearing in mind employees may be able to demonstrate how they effectively worked from home during the pandemic. 

    For this reason, many organisations are adapting to a post-Covid world where remote working for at least part of the week is considered the norm. Employers will need to strike a careful balance between protecting the rights of employees and attracting and retaining talent, while ensuring this is workable from a business perspective. 

    There are also wider implications for businesses when it comes to ensuring there is fair and equal treatment of employees. These may be more subtle and difficult to predict, such as the gradual formation of a two-tiered workforce. For example, it may be the case that if particular employees spend more time working from home than in the office environment, they may become 'out of sight and out of mind'. They may find themselves left out (inadvertently or otherwise) of key decision-making processes, less supported or increasingly overlooked when it comes to promotional opportunities. Employers should be careful to avoid this becoming a penalty for opting for more flexible work patterns, particularly as it may lead to discrimination claims in some circumstances.  

    It is certainly not to say that a rigid place of work does anything for efficiency, performance or employee satisfaction. However, with a more flexible work environment, responsibilities increase to ensure that there remains equality of opportunity and fair treatment among employees. 

    Data protection systems must be bolstered and strong policies put in place to withstand the potentially increased risks of remote working. Health and safety policies may need adjusting and questions of cost effectiveness (for example, of maintaining office premises) will become increasingly pressing. Businesses should ensure they are clear as to where exactly the employee is working from when working remotely, as there can be tax and other considerations if they are working from another jurisdiction. 

    Ultimately, however, the international shift towards flexible working is likely irreversible, and legislative developments to support employees in establishing their work-life balance, while maintaining business cohesion, efficiency and progress, should be welcomed where possible. 

    Jemma Pugh is a senior associate and Hannah Cohen a trainee solicitor at Wedlake Bell