Since the outbreak of the Covid-19 pandemic, a large proportion of the workforce has spent at least some of their time working from home.
For some employees, working from home was a purely temporary arrangement whilst lockdown measures applied. However, for many employees – especially office-based employees – this triggered the beginning of longer-lasting flexible working arrangements.
In such cases, employers should have already implemented homeworking and/or hybrid working policies which dictate the precise nature of these arrangements. For example, these policies should outline how regularly an employee may work from home and the conditions related to them doing so, such as performance monitoring and data security obligations. Unless the arrangements are intended to be irreversible, these policies should be expressed as discretionary and non-contractual and no formal variations should be made to employees’ contracts of employment where these already provide that their “normal place of work” is the company’s premises.
Terminating or varying these arrangements
Despite some employers reporting increased productivity since implementing large-scale flexible working arrangements, other employers have been eager to end or limit their employees’ ability to work from home, often citing the benefits of in-person collaboration and camaraderie. However, where employees have been working from home for some time, this can cause difficulties from a legal perspective, especially where the relevant policies have not been well-drafted or well-monitored.
In particular, where the working from home arrangement has been satisfactory, requiring an employee to return to the workplace permanently could amount to a breach of the implied term of mutual trust and confidence. An employee could use this to argue that they have been constructively dismissed. Therefore, any decision to require them to return to the office permanently should be founded on sound business reasoning following open and transparent consultation with them. They should also be provided with reasonable notice of the change rather than being expected to alter their working arrangements with immediate effect.
Moreover, there is a risk that the working from home arrangement may have become an implied term of their employment contract through custom and practice. This will be the case where the custom or practice (in this case, working from home) is “reasonable, notorious and certain”. As such, the risk is much higher where employers have not drafted relevant policies or not expressed those policies to be non-contractual. In contrast, where an employer has made clear that its policy is discretionary and may be revoked at any time, this will help to rebut any argument that the arrangements were ever intended to be permanent. However, it is ultimately a question of degree depending on the nature and duration of the custom or practice and so even arrangements which are expressed to be discretionary may still become implied terms where they subsist for long enough.
The same principle applies to employers wishing to enforce their hybrid working arrangements. For example, where they have in practice allowed employees to work from home more regularly than their policy permits, those employees may be able to argue that their current working pattern has become an implied term through custom or practice. In this way, employers should ensure that they are accurately monitoring how regularly staff are working from home and actively enforcing their policies where they are being overstretched.
Employers should also remember that, even where discretionary homeworking or hybrid working arrangements can be terminated, it remains open to individual employees to make flexible working requests requesting permanent flexible working arrangements. Employees may also need to consider whether homeworking or hybrid working arrangements may amount to a reasonable adjustment where the employee is disabled.