Remote working: legal issues for employers (UK)

Philip McCabe

Head of Employment Law. Spencers Solicitors

More employees are able to work outside the traditional “9 to 5” office, whether for a better work-life balance or to meet the demands of work.

Employment law solicitor Philip McCabe highlights some legal issues to consider with remote working.

Remote working is now a common feature of the business world - whether through informal “on the go” communications on a smart phone or via a more formalised working arrangement. All employees with at least 6 months’ service have a statutory right to make a request for flexible working which can include working outside the office.

Place of work 

An employer’s health and safety obligations do not stop at the office door. Employers should assess the suitability of the working environment at the employee’s home by carrying out regular workplace risk assessments and ensuring that their employee liability insurance extends to cover home working. 

Useful guidance notes and leaflets can be found on the HSE website, but merely just providing documents is unlikely to discharge an employer’s legal duties unless supported by appropriate training.

Would turning part of someone’s home into an office space be a breach of planning rules and invalidate a worker’s home insurance?

Having a dedicated workspace at home could potentially change the tax status of the property. Employers should highlight these potential implications to employees considering working from home early on in the process.

Redundancies and dismissals

Workers who do not follow the traditional office based model can present difficulties for employers who are contemplating redundancies. Employment law has not entirely caught up with the fact that employees might not have a specific workplace to which they are assigned. Legal obligations very often make reference to the employee’s place of work.

Redundancy is very much a location specific notion; it occurs where a particular site closes or where an employer’s need for work of a particular type ends or reduces in the place where the employee was employed.

The place of work also affects “pooling” or selection and – especially for larger scale restructuring where the employer has a greater duty to inform and consult with staff and their representatives as decided in the recent significant Ethel Austin ‘Woolworths’ decision.

For mobile workers, their place of work will be determined in part by reference to the facts but also to what their contract says.

Employers can protect themselves by ensuring that contracts specify not just the employee’s place of work but also to which base they are assigned.

Employers with mobile workers must consider them at an early stage of redundancy planning to pre-empt challenges over pooling and consultation.

Working time

The ability to work away from the office also blurs the line between work time and down time.

A Harris Poll of 2,000 UK employees conducted for jobs review site Glassdoor last year found that over half of all participants, admitted to doing some work while on holiday. Of those employees who worked on holiday, 11 per cent said they were worried about getting behind on their workload; 10 per cent said were hoping for a pay rise; and 6 per cent were concerned they would lose their job.

Employers need to ensure workers have opted out of the Working Time Regulations if the additional work pushes them over the “48-hour week” rule applies.

Remote Management

Dealing with employees working remotely requires additional effort to ensure they receive the same quality of management and inclusion as everyone else. 

Businesses need to remain proactive to ensure they provide sufficient access to training and promotion, corporate “visibility”, integration and social involvement. Given the majority of employees who work from home do so to balance their family commitments (and the greater proportion are women) or because of a disability, to not maintain those links could be discriminatory.

Confidentiality and data security

While most employers will be alert to their duties to maintain data protection and security, mobile working poses additional challenges and the risk of breaching duties owed to third parties.

Not losing and encryption of mobile devices is something most employers will have in place, but thought should also be given to restricting the ability to print, download or remotely access particularly sensitive information outside the office.

Employees should also be given guidance about inadvertent disclosure though being overheard or overlooked in public spaces and of the implications of taking devices overseas, which could amount, in law, to a cross-border data transfer.

A well drafted policy which workers are aware of and abide by is crucial to protect your business.

Philip McCabe is a solicitor specialising in Employment Law with Spencers Solicitors.

For more information on your duties as an employer email philip.mccabe@spencerssolicitors.com

This bulletin is provided for information only and is not a substitute for legal advice. You should obtain specific, personal advice about your circumstances and not rely on the information or comments in this bulletin.

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