1. Contractual changes
- consult employees
- include ‘place of work’ in contracts
- take legal advice if conflict occurs
Before an employer moves to a completely hybrid working arrangement, there should be consultation and agreement with all employees. Employment contracts should also be altered to contain a reference to ‘place of work’, so that if place of work changes, so must the contract.
If an employer has decided that a job is to be done primarily at home, what happens if the employee doesn’t agree? Will they go as far as dismissal, and if so, will they have a fair reason for dismissal? It’s important to take legal advice in these cases.
2. Flexible working requests
- follow the formal process
- rejection can have legal implications
- it is difficult to justify refusing a request
Many employees are now requesting to permanently work from home, having done so successfully for the past two years. In these cases there is a formal process to follow, and while the process is straightforward, the risks of getting it wrong can be significant. There is also a potential for legal action if a flexible working request is denied.
As well as the legal risks, the situation can be an emotional one to deal with, and this was the case even prior to Covid-19. Now there is the added pressure of trying to justify the rejection of a request to work at home from someone who has already been doing it successfully.
3. Monitoring employees at home
- consult with employees
- don’t increase monitoring for homeworkers
- consider an output-based approach
There has been an increase in queries from employers thinking about introducing software to monitor and track employees’ online activities while they are working at home.
From a legal perspective, an increase in monitoring would necessitate consultation with employees, and potential changes to several policies. It’s also likely to lead to grievances, and potentially an increase in workers leaving the business.
My recommendation would be that if it’s not something that was part of the job while people were in the office (eg call recording is often standard) then don’t do it at home.
Some employers are moving to a more output-based approach, with less direct control over the exact hours during which work is done. This is very popular with home-based employees, and also opens up the opportunity for dealing with customers outside of ‘normal’ working hours.
4. Imposing salary changes
- proceed cautiously
- unlikely to have legal justification for salary cuts
- take advantage of an at-home workforce
Some employers have been discussing the possibility of reducing salaries of employees who have been paid a premium because of where they were based. This is particularly relevant for those employees who receive a London weighting.
We have been advising employers to proceed cautiously with this. They’re unlikely to have a legal justification for imposing salary cuts just because people don’t have the same level of travelling expenses – not unless they also increased salaries every time the price of season tickets went up!
The ability to work at home is something that employers can take advantage of. If they can cast their net more widely, there is the potential to make some cost savings, as well as to increase diversity in their organisation.
