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Is a new bill of rights for remote workers in the offing?

8 Oct 2020 By Jonathan Owen

With home working becoming the norm, and several European countries bringing in new laws on this, experts advise whether these are needed – and likely – in the UK

When it comes to the workplace, home working is the new normal for an increasing number of workers globally, and it’s likely to stay that way. Which means recent months have seen a number of European countries bring in new laws around home working.

Spain has drafted legislation to ensure remote workers have equal working conditions and  career development opportunities, while last week Germany proposed a Mobile Work Act, giving employees a legal right to work from home wherever possible.

The Republic of Ireland is also updating its guidance for people working remotely, and France has had laws regulating home working hours since 2017.

The UK has yet to follow suit, however, in bringing forward bespoke legislation to protect home workers. But some would argue the current situation makes this more urgent and more likely. People Management asked legal experts for their views on a bill of rights for remote workers, and how likely this is to be brought in at some point…

What is already in place from a legal perspective to protect remote workers in the UK?

The UK boasts a raft of employment legislation protecting everything from wages to working conditions. But, as senior consultant at CM Murray Pia Sanchez says: “In the UK, we do not have legislation that specifically covers remote workers.”

Protections for people working from home are the same as for those working in the office, according to Paul Holcroft, associate director at Croner. These include not working more than 48 hours a week, unless agreed, having the same salary and benefits, entitlements to sick pay and holiday leave, and protections against unfair dismissal.

Employers also have a duty of care to provide their staff with a safe working environment, even if the employee is working from home, notes Paul Kelly, head of employment at Blacks Solicitors. “Employers have a responsibility to conduct a risk assessment to check whether the employee’s home is safe and suitable, and ensure that staff working from home follow the law on working hours,” he says.

What would a new law protecting remote workers look like?

Having specific legislation for remote workers would provide greater clarity on issues such as equality of career opportunities and exactly what needs to be paid for by employers in terms of home office equipment, says Kathleen Heycock, partner at Farrer & Co. 

“It is also important to understand who has the right to request and enforce remote working – we know employees can ask and be accepted or denied as part of a flexible working request. Is the same true of the employers if they do the asking?” she adds.

What changes have been proposed in the UK so far?

So far, not a great deal has been mooted. Holcroft notes that when prime minister Boris Johnson changed the guidance in England back to a preference for working from home, he faced numerous searching questions regarding the impact on mental health. His answers “did not indicate the likelihood of new legislation to [support remote workers] as he advised that employees whose mental health would benefit from working from a Covid-secure office should be allowed to do so”, he says.

To date, there has been more of a focus on the right to work remotely itself, according to Heycock. The Queen’s speech in December last year announced plans for a new employment bill, which promises to “enhance workers’ rights” and support flexible working, but this has yet to be presented to parliament.

Could the UK end up following those European countries adopting new laws for remote workers?

Britain bringing in new laws to protect home workers is “a real possibility”, says Holcroft. “Given the new advice from the government in England for home working to be implemented for the next six months, as well as the position in Scotland and Wales being that home working should continue for the foreseeable future, new laws could become necessary,” he says.

There has already been talk of enshrining a right to work from home in law, says Kelly. Indeed, even pre-Covid, the Conservative’s 2019 manifesto “stated that flexible working should be encouraged and be the default unless employers have a good reason not to permit it”, he points out.

However, some lawyers do not see a need for bespoke laws for home working. “The UK probably does not really need to introduce a legal framework specific to remote working,” says Sanchez. “There is sufficient legislation already that protects the rights and health and safety of employees both at home and in the workplace. In this respect, UK employment legislation and work culture is many years ahead of many of our European neighbours.”

What sort of timescales would be involved if new legislation was brought in?

Heycock thinks it is unlikely that anything will happen in the very near term. “The government is probably too distracted by Brexit and Covid to consider new legislation for this issue and there is no spare parliamentary time,” she says. However, in the long term it may be an area that “warrants specific legislation if in fact people working remotely seem to be treated less favourably than those in the office”, she says.

Holcroft agrees that, as time goes on, the UK may start to see more problems with remote working, “especially around employers wanting to pay employees less for working remotely”. “This is yet to be seen, though,” he adds.

Although there has been no official statement or guidance on the matter, Kelly says a new law protecting remote workers “looks feasible and is probably not far off given the events of the last six months”.

“Health secretary Matt Hancock has already said the government would consider legislation requiring employers to make the option of remote working mandatory, as there is an acceptance that working from home has been made the ‘new norm’ thanks to the coronavirus pandemic,” he says.

If a bill were to be introduced, it would likely take some time to go through all the necessary readings and consultations, Heycock adds, as it would be unlikely to qualify as emergency Covid legislation and so would not be fast-tracked. “This means it could easily take a year or two – possibly more if we all get distracted by Brexit,” she says.

David Greenhalgh, senior employment lawyer at Excello Law, says that, given businesses are currently contending with both coronavirus and Brexit, it may be best to wait until some of these issues have been resolved before considering whether more legal protections for remote workers are needed. In the meantime, having home-working policies in place could be a “a good step in the right direction” and “could be expressed to be contractual if employers are clear on their obligations and ability to deliver what is set out in the policy”, he says.

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