Are you sitting comfortably?
As we move into the warmer months, swapping the office desk for a laptop in a sunny garden can be increasingly tempting! In the post-pandemic world, employees have become accustomed to home and hybrid working, and most employers permit this (where practicable) to some degree.
However, alongside the trend towards greater flexibility we have seen a marked rise in employment tribunal claims relating to remote working – official figures show an increase of 50% between 2021 and 2022.
Some of the main challenges employers face in this area include:
- ensuring an employee’s terms and conditions accurately reflect the arrangement;
- difficulty managing employees or monitoring performance due to reduced in-person supervision;
- how to ensure an employee’s health, safety and wellbeing are protected when remote working; and
- managing data protection and confidentiality risks.
To reduce the chances of tribunal litigation, employers should ensure their home and hybrid working policies are implemented clearly, fairly and consistently. Asking the following questions can help to identify areas of vulnerability:
- Does your contract of employment cover remote working arrangements? We recommend the contract specifies an employee’s place of work and whether the employee is permitted to work at alternative places, including their home. This is worthwhile even if further details are included in a separate policy.
- Does your remote-working policy set out the standards and rules which apply? Such policies typically include provisions on minimum office attendance, whether any specific conditions are applicable, responsibilities in respect of management and training, and health and safety considerations. Employers need to strike a balance between giving staff flexibility and ensuring the needs of the business are met.
- Which remote working locations are permitted? An employer may wish to limit employees to working from their home address in the UK, or other specified locations within commutable distance. It may also be wise to restrict working from public spaces where confidentially and security can be at risk. Permitting overseas working can lead to legal and tax complexities, so needs careful consideration.
- Should any arrangements be subject to a trial period? Where employers are concerned that remote working may not work for the business, or for specific roles, consider agreeing a trial period during which the arrangements can be monitored. If adopting this approach, try to be as clear as possible about how the success or failure of the trial will be assessed.
- Will working hours and breaks be affected? Working from home can afford employees more flexibility to manage personal appointments and/or school runs, but employers will want to ensure that staff remain available for contact, calls and meetings (either generally or within certain ‘core hours’). Expectations should be clearly communicated. Employers should also ensure that employees are taking sufficient breaks and (where applicable) that working time limits are observed and suitable records maintained.
- Are home, hybrid and office workers treated equally? Any discrepancies in salary and benefits or access to training and promotion opportunities as between home or hybrid workers and office workers could potentially give rise to discrimination claims. If there are differences in treatment, these will need to be objectively justified.
Ultimately, by having clear, logical policies and practices in place, employers can both reduce the risk of legal claims and put themselves in a stronger position to take appropriate action if their rules are not followed or the arrangements are not working out. Conversely, a lack of clarity and inconsistently in this area will heighten the chance of litigation and likely impact on employee relations.
Looking ahead (and following a call from The House of Lords Committee on Home-based Working), a report is expected to be published in November 2025 addressing the challenges and opportunities of remote and hybrid working. It will be interesting to see whether this leads to any further legislative changes or guidance.
Separately, you may have read recently about the case of Wicken v Akita Systems. The outcome of the case was that Mr Wicken, an IT director, was successful in a claim for constructive unfair dismissal, after his employer failed to deal with his grievance properly and told him they had lost all trust and confidence in him. As a result, he received an award of £30,000 from the employment tribunal.
During the hearing, the employer had complained that instead of attending an important mediation meeting in person, Mr Wicken had wanted to join via MS Teams so that he could supervise some gardeners at his home. As part of its reasoned judgment, the tribunal considered whether this conduct amounted to ‘contributory fault’ so as to merit a reduction in Mr Wicken’s award. It concluded that it did not reach the (relatively high) threshold for ‘culpable or blameworthy’ behaviour, therefore no reduction was made.
Unfortunately, the nuance of this point was lost in certain newspaper articles, with one erroneously reporting that the tribunal had determined ‘employees should not face disciplinary action for working from home to supervise gardeners.’ A perfect illustration of ‘don’t believe everything you read in the press!’
Our team are experienced in providing advice relating to remote working arrangements and in handling any subsequent issues that arise. Please get in touch with [email protected] should you require assistance.
