To work or not work from home? Q&A with an employment lawyer.

As we move into the third year of the Coronavirus pandemic, many businesses have shifted from full time office work to hybrid or fully remote work.  Since the lifting of government restrictions, the discretion now lies with employers (and sometimes even employees) about whether to have their staff work from home or make the commute into the office.  While each business will have their own thoughts on the most efficient way to run their business, there are certain legal implications around any changes to work location which employers and employees need to consider before making these decisions.

As an employee, you might find yourself asking the following questions:

1. Do I have the right to work from home if I am scared of catching Covid?

There is no automatic right to work from home.  Under the Flexible Working Regulations 2014 employees with at least 26 week’s service have the right to ask their employer in writing to make reasonable changes to their work arrangements (which could include asking for home working). If you make a flexible working request your employer must deal with it in a reasonable manner and make a decision within a 3 month period. 

Your employer can refuse your request on the basis that home working does not fit the needs of the business but they must explain this by reference to factors such as cost, impact on customer service, performance or quality, or inability to recruit staff.  In the post-pandemic world these are likely to be difficult factors to rely on if the business has successfully operated with a remote workforce during the pandemic.

There has been an on-going requirement for all employers to follow the government’s ‘Working Safely’ guidance since it was issued in response to Covid-19 back in July 2021. This included a requirement to consider Covid-19 in their health and safety risk assessments. However, from 1 April 2022 this will no longer be required and the ‘Working Safely’ guidance will be replaced by new public health guidance. It is likely that the onus will be on employers going forward to decide what measures are appropriate for their workplace rather than to follow specific guidance.

However, there are employees who require special consideration (such as those who are unable to have the vaccination for medical reasons and the clinically vulnerable) and employers must continue to review their safety measures and working practices to ensure that all employees are safe from on-going Covid risks.

At the same time employers must ensure that they comply with their statutory and common law duties in relation to health and safety and equality in relation to all employees and workers and customers. This may mean for example giving extra consideration to workers who are at higher risk of being seriously ill with Covid because of medical conditions or age.

So, whether you make a written request for flexible working or not, you should talk to your employer about any concerns you have. In turn, they should listen and take reasonable steps to address them, but this does not necessarily mean allowing you to work from home either on a temporary or permanent basis.

2. What legal obligations does my employer have to me if I am working from home?

An employer’s duty of care regarding employee health and safety also applies to any employees who have been instructed or allowed to work remotely or who have hybrid roles. A hybrid role usually means some days working in the office and some days at home.

This means that employers need to ensure that employees who are working from home have a safe environment to work in. They may for example need extra support in regard to their mental health and personal development, as being isolated may lead to social isolation, lack of opportunity, anxiety, and stress, or even depression particularly for those who live alone.

Special consideration needs to be made regarding work hours, as some employees have reported working longer hours since they began working remotely. Employers should ensure that employees working from home take adequate breaks and are not exceeding the 48 hour weekly limit in line with the Working Time Regulations.

If you are an employee who has questions about your work conditions or feel you may need special working arrangements due to Covid-19 or other health and safety reasons, please get in touch.  

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