Geoffrey Caesar, Solicitor

Flexible and remote working arrangements are becoming more common and popular among employers and employees, especially in the wake of the COVID-19 pandemic. However, there are some legal implications that both parties need to be aware of and address before implementing such arrangements.

In this blog post I will explore some key legal issues relating to flexible and remote working based on English law and provide some examples and practical tips.

Flexible working refers to any working pattern that differs from the regular or standard working hours, days or location. For example, flexible working can include part-time work, compressed hours, flexitime, annualised hours, staggered hours, job sharing or term-time work.

Remote working refers to working from a location other than the employer’s premises, such as from home or another country.

The right to request flexible working

Under English law, employees do not have a right to flexible working, but they do have a right to request flexible working, provided that they meet specific criteria. Employees need at least 26 weeks of continuous service with their employer and can only make one request every 12 months. However, starting 6 April 2024, these requirements will change, and employees can request from their first day of employment and up to two requests per year.

Employers must consider flexible working requests reasonably and can only refuse them for one of the eight statutory business reasons, such as the burden of additional costs, the inability to reorganise work among existing staff or the detrimental impact on quality or performance. Employers must notify employees of their decision within three months of receiving the request (or two months from 6 April 2024) unless an extension is agreed.

If an employer agrees to a flexible working request, this will usually result in a permanent change to the employee’s employment contract unless otherwise agreed. Therefore, employers should confirm the change in writing and specify the date it takes effect. If an employer rejects a flexible working request, they should provide a written explanation of the business reason for doing so and inform the employee of their right to appeal.

Some examples of flexible working requests are:

• An employee with caring responsibilities for their elderly parent asks to reduce their working hours from full-time to part-time.
• An employee who wants to pursue further education asks to change their working days from Monday to Friday to Tuesday to Saturday.
• An employee suffering from a chronic health condition asks to work from home two days a week.

Contractual issues in remote working arrangements

Remote working arrangements can also raise some contractual issues that need to be addressed by employers and employees. For example:

• Employers should review their existing employment contracts and policies (such as homeworking or health and safety policies) and update them as necessary to reflect the remote working arrangements. Alternatively, employers can issue new contracts or addendums that specify the terms and conditions of remote working, such as the location, hours, equipment, expenses and supervision.
• Employers should ensure they have obtained the employee’s consent before changing their place of work or imposing any other contractual variations. If not, employers may face claims for breach of contract or constructive dismissal.
• Employers should also consider whether they need to update their employer’s liability insurance policies or notify their insurers of any changes in the employee’s work location or activities.
• Employees who work remotely abroad for a UK employer may retain some employment rights in the UK, especially about termination and discrimination laws. However, they may also acquire employment rights in the country where they work, which may differ from or conflict with UK laws. Therefore, employers should seek legal advice before agreeing to such arrangements and ensure they comply with both jurisdictions.
• Employees who work remotely may incur some expenses related to their work, such as broadband costs, utility bills or office equipment. Employers should clarify whether they will reimburse these expenses or provide an allowance. Employees may also claim tax relief for some of these expenses from HM Revenue & Customs.

Some examples of remote working arrangements are:

• An employee who lives in London asks to work from their holiday home in Cornwall for three months during the summer.
• An employee married to a French citizen asks to work from France for six months while their spouse is on secondment there.
• An employee in a global team asks to work from different countries every month as part of their travel plans.

Health and safety issues in flexible and remote working arrangements

Flexible and remote working arrangements can also pose health and safety risks that employers must be aware of and mitigate. For example:

• Employers have a duty of care towards their employees and must ensure a safe and suitable working environment, even if the employees work from home or another location. Employers should conduct a risk assessment of the employee’s work area and equipment and take any necessary steps to eliminate or reduce any hazards. Employers should also provide adequate training and guidance on using the equipment safely and report any accidents or incidents.
• Employers should also monitor and manage the employees’ workload and working hours and ensure that they comply with the Working Time Regulations 1998, which limits the maximum weekly working time, rest breaks, and annual leave. Employers should also encourage employees to take regular breaks and avoid working excessively or outside their normal hours.
• Employers should support the employee’s mental health and well-being and prevent any stress or isolation that may arise from flexible or remote working. Employers should maintain regular communication and feedback with the employees and ensure they can access any support services or resources they may need. Employers should also foster a positive and inclusive culture and ensure that flexible or remote workers are not treated less favourably or excluded from any opportunities or benefits.

Some examples of health and safety issues are:

• An employee who works from home suffers from back pain due to using an inadequate chair and desk.
• An employee who works flexitime works 12 hours a day, four days a week, without taking any breaks.
• An employee who works remotely feels lonely and depressed due to a lack of social interaction with their colleagues.

Conclusion

Flexible and remote working arrangements can offer many benefits for employers and employees, such as increased productivity, motivation, flexibility, diversity and retention. However, they also entail some legal implications that must be considered and addressed before implementing such arrangements. By following the guidance and tips in this blog post, employers can ensure they comply with their legal obligations and best practices and create a thriving, sustainable, flexible and remote working culture.

Contact me for further information or if you require a legal review of your policies and procedures.