Legal

Could the UK introduce the legal right to work from home?

20 May 2020 By Merrill April and Pooja Dasgupta

With some countries taking a more ‘employee friendly’ approach to flexible working, Merrill April and Pooja Dasgupta examine whether the UK could follow suit

Germany recently announced that it will introduce laws giving its citizens the legal right to work from home. In making this move, Germany will be following in Finland’s footsteps, which introduced a new Working Hours Act in January 2020. One of the key amendments of this was that work performed at home and so-called distance work now falls within the scope of the Act.

The Finnish approach and the impact of Covid-19

Finland’s welcoming attitude towards flexible working appears to stem from its deep-rooted culture of trust, flowing from the Scandinavian approach of collaborative working. By contrast, in the UK, while there have been significant developments in our flexible working regime, critics consider the regime to lack teeth, particularly given the range of reasons available to employers to justify refusal of flexible working requests and the limited redress for employees alleging procedural failings. 

However, Covid-19 and its practical implications for businesses, including the requirement to rapidly implement working from home measures, has proved to be an eye-opening culture shift for many employers, which are quickly realising that home working may not be the challenge to productivity it was once assumed to be. 

The UK situation

So could the legal right to work from home be introduced in the UK? The short answer is yes. In the same way that Finland built upon its previous Working Hours Act, the UK could seek to amend the Working Time Regulations 1998 to include all work performed from home; at present, working from home voluntarily is not normally considered ‘working time’ under the regulations. 

Another option would be to amend the UK’s existing flexible working legislation to be more ‘employee friendly’, perhaps by minimising the hurdles to make a request; limiting employers’ grounds of refusal; or heightening the consequences of procedural failings, given that the maximum amount of compensation is currently only eight weeks’ capped pay. It may also be worth reconsidering the frequency with which requests can be made (currently annually). 

It is improbable that any right to work from home in the UK would be introduced as an absolute, unqualified right. There would need to be some element of flexibility for employers (such as a trial period or an opt-out on specified notice). 

It would also be necessary to consider practical circumstances in which employers could deny the right, such as client demand or as a capability or disciplinary measure in the event that an employee’s performance were to deteriorate while working from home. Care would need to be taken to ensure that any new legislation dovetailed with current anti-discrimination legislation for applicants and employees seeking to exercise any new rights. Employers would also need to consider whether formal variations of contracts would be required to give effect to home working arrangements for those eligible, which would likely be a burden for businesses, and/or whether they could implement a home working policy.

Advantages v disadvantages

While, in principle, the right to work from home could be introduced in the UK, it is unlikely the culture within the majority of UK businesses would have shifted to the extent that employers would favourably view the introduction of an absolute right to work from home. It may also be that, unlike in Finland, there is inadequate state or affordable private provision for those with caring responsibilities to ensure that those working from home are not distracted by other responsibilities that conflict with their paid work. 

It is nevertheless worthwhile considering the advantages and disadvantages of formalising home working arrangements, which include: 

Advantages

  • reduced overhead costs (if there is sufficient long-term take up);
  • increased productivity (although some businesses may argue the opposite, depending on the culture within the business and individual attitudes);
  • environmental benefits (such as reduced commuter traffic);
  • skills retention (where employees not given the right would leave the workplace altogether); and
  • flexible meeting venues for staff and clients.

Disadvantages

  • poor working conditions, especially in shared households;
  • staff feeling isolated (recently exacerbated by social distancing during lockdown);
  • increased difficulties in separating work and home life;
  • loss of managerial control and impact on work culture;
  • decreased productivity; and
  • potential confidentiality/data security issues.

The lockdown period will inevitably have taught many employers that they can successfully run their businesses from home; after all, necessity is the mother of invention. In practice, however, employers will want to retain an element of flexibility in an economy trying to recover from the brutal impact of Covid-19 and make the UK an attractive place for entrepreneurs and job creators to do business. It is therefore likely that a ‘halfway house’ may be needed; for example, through further guidance being provided by the government/HSE/Acas in relation to health and safety obligations towards staff and clients, and perhaps a code of practice on facilitating working from home arrangements wherever necessary, with particular regard to individual circumstances.

Merrill April is a partner, and Pooja Dasgupta an associate, at CM Murray

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