Homeworking or homeshirking?

We have an employee who has been employed by us for 5 years.  She originally worked full time in our London office, but about a year ago made a request to work flexibly as she has young children, which we approved. She now works 3 days a week in our London office, and the other 2 days a week from home. We now have a new senior management team, one of whom is particularly against home working.  He said to me that home working was nothing more than “a euphemism for sloth” and that employees will just end up staring out of the window.  The team clearly believe that our flexible worker is not producing enough work in the two days spent at home, and there have also been issues with other employees needing access to files she has taken home, as well as problems with her broadband connection.  Sometimes she does not answer the phone.

Management have now decided that she needs to either return to the office full time or, reluctantly, we will have to let her go.  Can we now request that she works from the London office 5 days a week?

HR Team, Old School Values Limited

Dear HR Team

As you will know, the number of employees who work from home for some, or all, of the working week has steadily increased over recent years, no doubt as a result of the demands of modern life, especially where an employee is balancing family and work.  The issue of home working can throw up a number of tricky employment law issues. How best to deal with these?

Flexible Working Request

We presume that the flexible working request that your employee made a year ago was pursuant to the statutory scheme which came into force in April 2003.  Under this scheme, an employer must seriously consider an application from an employee to work flexibly if the employee has a child under the age of 6 (or 18 for disabled children), and more recently, if the employee intends to care for an adult (in certain limited situations).  It sounds as if the company considered and granted the employee’s request to work flexibly from home, 2 days a week,  pursuant to the flexible working legislation.

The employee’s terms and conditions of employment will have been varied as a result of the Company accepting this request and presumably she will have signed an amended contract which reflects the new working arrangements (although even if she hasn’t, the variation still has effect).

Dealing with the attitude of management

The attitude you have described is not at all uncommon, particularly amongst more “traditional” managers who still consider an employee’s place to be in the office.  As the HR Team, you have the unenviable job of trying to educate management in respect of their statutory duties (both to genuinely consider a flexible working request in the first place and to stick with the arrangements if they are working well).  On a practical level, it may be a good idea to explore whether it is possible to improve the current arrangements in the first instance (as it’s likely to lead to less legal problems), rather than to try and revert to the previous set up straight away. Some suggested improvements might be to:

• ask the manager to arrange catch-ups with the homeworker and let her show evidence of the work she has undertaken;
• request that the IT department or support team have a look into the broadband problems, as these may be easily fixed, which could immediately solve one of the communication issues;
• ensure that the employee only takes home the filing which it is absolutely necessary for her to have, and suggest that she take copies of key documents, so that office-based employees can also access the same material.  Alternatively, consider implementing an electronic filing system which could be accessed by everyone, wherever they are located.

Also consider some pro active performance management, informing the employee about the concerns and giving her a reasonable opportunity and timescale (e.g. one month) in which to make improvements.  For example, it may be that she is ignoring phone calls while getting on with her with her work and that if she was told that answering the phone should be a priority then she would do so.  She needs to be told that during working hours she is expected to be available at her desk.

Would the proposed move back to the London office be a variation of the contract?

If the company now wants to remove that right then this will be a further variation of the contract, in relation to which it will be necessary to obtain the employee’s consent. A unilateral change to the employee’s contract on the basis proposed would amount to a breach of contract and could give rise to a number of claims, for example wrongful and/or constructive dismissal if the employee resigns (most likely on the basis that the Company has breached the implied duty of trust and confidence).  A sex discrimination claim could also be looming, as discussed below.

Consulting with the employee

The Company will need to consult with the employee about the proposed variation in order to obtain her consent. This would involve holding a meeting with the employee and fully explaining the proposed change, as well as the business reasons why it is necessary. The employee should then be given the opportunity to make representations about the proposals and these should be fully considered by management – bear in mind that the proposal is likely to have financial implications for the employee, particularly where childcare is an issue.

The issue of sex discrimination

Where flexible working requests are concerned, one of the most obvious risks is that an employee could allege that the company’s refusal to allow the flexible working requirements to continue amounts to indirect sex discrimination. This would be on the basis that the policy of requiring all employees to work full-time in the office is more likely to disadvantage women, who have greater childcare responsibilities. Employers are entitled to argue that their decision to impose the office-based requirement is justified, but this is not necessarily an easy task and in this case where, although there have been some problems with the arrangements, these could be resolved with appropriate management.  There is now an expectation that employers will take a forward-thinking approach and at the very least consider adapting working practices to accommodate employee requests. Where there is an established practice of homeworking, this expectation is likely to be even greater.  You would be best placed to see the removal of the right to work from home as a last resort, rather than the first.

It almost goes without saying that the same risk of a sex discrimination claim exists if you were to dismiss the employee as a result of her refusal to agree to your proposed contractual variation. Be mindful of the potential for uncapped damages (if nothing else influences senior management attitudes, the financial implications just might!).

Building in protection for the company

There are sensible practices that employers you can adopt to minimise the problems of moving a homeworker back into the office. Consider setting a trial period (e.g. 6 months) with regular review sessions at which the employee can be given feedback and the areas which require improvement can be discussed. If things are still not working out at the end of the trial period, then moving the employee back to full-time working in the office may be less problematic where the company has appropriately managed the employee’s expectations over an extended period of time.