Since the early 1990s communications technology has given an increasing number of people the ability to work effectively from home (although readers who remember using dial-up modems may still be recovering from the stress levels caused by slow and intermittent connections). Recent advances in areas such as wireless networking, the greater availability of broadband connections and mobile email have made possible an increasingly flexible and practical set of options. These options include working at wireless internet hotspots, rather than in the traditional home office. This might mean employees are touching down in a café, train, or even on a park bench. Lamp posts and street signs in the City are set to become hotspots and will enable wireless internet access across the Square Mile by the end of 2006, so it seems that the trend, if anything, is set to accelerate.

This freedom clearly has benefits for the employee, but it can also be to the advantage to the employer. Flexibility as to the location of the workforce can make a company more attractive to existing or potential staff members and could enable expanding companies to delay renting additional office space. Some well-established business have realised millions of pounds of capital tied up in their property portfolio by embracing a flexible working culture. However, for all of the apparent advantages, it is worthwhile to consider the emerging legal issues which flexible working entails.

Safeguarding employee health & welfare

A crucial area of responsibility for employers is their responsibility for the health and safety of workers, even for individuals who are not physically located at the employer’s place of business. This legal responsibility can be summarised as a requirement to provide a safe place of work and a safe system of work. Meeting this responsibility will entail a range of measures, such as workstation assessments for home offices and adjustments to office procedures for workers on the move.  Certain categories of worker will demand special consideration, such as disabled or pregnant employees.  In the case of the latter group, any risks that mobile working presents to the unborn child would need to be considered.

Contractual issues

Unless home working provisions are already provided for in an employee’s employment contract, a move to home or portable working will necessitate an amendment to that contract and probably the staff handbook as well.  Both employers and employees are likely to want to reserve the right to go back to the original working arrangements and inserting this right into the employee’s contract is one way of making this right crystal clear.  Some handbook procedures may be impractical for remote workers and disciplinary procedures should be amended so that any breach of the homeworking policy (including health and safety breaches) could result in disciplinary proceedings being instituted against the employee, up to and including dismissal.

Management challenges

Even with appropriate amendments to contracts and company policies, controlling employee behaviour at a distance is unlikely to be easy. This does not have to be disastrous; the freedom from supervision a homeworker enjoys could be conducive to increased creativity and hard work and, as technology continues to improve, remote teamworking can only become easier. However, a balance needs to be struck.  Employers will need to ensure that contact arrangements are adequate to satisfy their legitimate interest in knowing what their employees are doing. But frequent checking in can easily slip into constant checking up: excessive attempts to supervise homeworkers could constitute harassment and should be avoided.

Employees often fear that, by working outside of the office environment, they will become isolated and forgotten.  Employers should take care to treat mobile and home workers fairly and reasonably, and make sure that they are not disadvantaged.  As for all staff, fairness and objectivity must be exercised when reviewing the performance of mobile employees.  Employment contracts contain unwritten terms, such as the duty of mutual trust and confidence, and treating remote workers unfairly risks could place an employer in breach of contract and at risk of litigation.

An employer is nonetheless entitled to make it clear what is and is not acceptable behaviour through the use of policy documents and the company handbook. Policies which govern employee behaviour, such as rules on alcohol consumption at work, may need to be updated with examples of their application to homeworkers. It would be advisable to state clearly that an employee who has drunk alcohol may not use company equipment, irrespective of whether that equipment is in the office or at home.

Treating remote workers fairly also means not abusing the tools that allow them to stay in touch with the office. As well as possibly placing unreasonable demands of employees to be ‘on call’ 24/7, communications technology presents new challenges to staying within legal limits on working time. ‘Holidays’ spent glued to a PDA or logged in to the corporate intranet may not count as holiday for the purposes of calculating working time.

Confidentiality and Data Protection

Home working policies need to account for the increased challenge of maintaining the confidentiality of commercially sensitive information. Restrictions should be placed on taking company property, such as laptops, out of the employee’s home. Taking a Blackberry to the pub presents a business hazard that goes far beyond simply spilling wine on it.

In addition, the EU and UK have tough data protection laws, which could be breached if a home worker fails to properly safeguard confidential information. Data protection obligations go beyond merely technical measures and need to take into account physical security, the reliability of employees and the protocols for use and access to personal data.  Restrictions apply to international transfers of personal data to countries without adequate safeguards (with the USA being notable for its lack of such safeguards), so if an employee is working abroad on a laptop containing personal data, whether on a business trip to New York or at a holiday home in Spain, they must ensure that the data stays in their possession and that that they follow adequate procedures concerning security.

A right to work from home?

Despite its advantages, and perhaps because of the pitfalls listed above, some employers may not feel ready for the “portable office”. But a reluctant employer may find itself faced with an official request for flexible working.  This is because, since April 2003, employees who wish to look after a child aged 6 or less (or 18, if the child is disabled) have the right to request flexibility as to their place of work (as well as their hours and time of work).  These requests can only be refused if the employer has a valid business reason for the refusal.  Although the grounds for refusal are wide, recent case law shows that the tribunal uses its ability to check the accuracy of the underlying facts. Refusal of a request may even amount to sex discrimination, since, statistically, more woman than men have caring responsibilities. Proposals have already been made to extend this right to request flexible working to carers.

Preparation is key

Depending on the culture of the organisation and the commitment of the particular employee home working could be the future for many organisations. Although setting up the systems and procedures to enable effective home working may appear daunting for employers, it is far more preferable to set up the appropriate systems and considered the legal issues long before the first person swaps their desk for Starbucks.

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