Please sir, Can I work from home?

I have been in HR in one form or another for the past 25 years and over that time I have seen a significant increase in the number of requests to work from home.

In part, this is being driven by significant improvements in technology, but there is a whole range of reasons given when someone makes the request. Some are, in my mind quite reasonable. Others are to be quite blank about it, taking the piss!

As a general rule, for most employers, the initial reaction is a big fat resounding “NO”, but I do believe that following the easing of the lockdown which has been caused by Covid-19, we will begin to see a seismic shift in this area and like all seismic activity, there will be aftershocks.

Let’s start by looking at some of the reasons for the requests, – there is a large amount of variety here. We’ll then explore the main reasons for the “no”, – there is a lot more consistency among employers than there is among employees. Finally, acknowledging that for some the genie is now out of the bottle, let’s look at the options for ‘what next?’.

The reasons for requests

As you might imagine, everyone has a different reason for wanting to work from home and for some, that reason changes over time.

Some of the main reasons evolve around the commute: the commute is too long, the trains or buses too unreliable, the roads too crowded, the costs of travel too prohibitive when compared to my salary. Employees often seek to work from home some or part of the time to reduce the amount of time ‘wasted’ commuting or to cut down the costs of travel including petrol, parking and tickets.

Sickness and wellbeing are often other reasons cited for wanting to work from home at least on some days. For some, the travel is too difficult; this could be physically or mentally. For others, working from home enables them to manage symptoms more easily and this could be on a planned or a reactive basis.

Among managers requesting to work from home, the reasons are often related to needing time to think or to work on a particular project. In some cases, the open-plan office gives them reduced opportunity to work on sensitive or confidential issues. Space issues within the office may lead to some employees either asking to work from home or being asked to work from home, especially as a business expands and its office space becomes cramped and uncomfortable.

The environment is another reason often cited, as employees want to reduce their carbon footprint. This might be the case with employees based in the regions for a company. So they will work from home when not on the road, rather than travelling to a central office.

For ad-hoc home workers, reasons given include the gas man coming to fix the boiler, a medical appointment making coming into the office a waste of time or waiting at home for a delivery such as a new sofa or another large item which cannot be left on the doorstep or put through the letterbox.

Some of the more emotionally based reasons for wanting to work from home include: to look after a young child, to look after a sick child or dependent, to look after a sick pet or because the new puppy can’t be left home alone. These are much more contentious requests and while the sick child or dependent can be managed on a short term basis, there is a very strong argument that says if you are the primary carer for a young child, you should either be looking after the child, or working. It’s not fair to either your child or your employer to try to balance the two.

A business reason to say "no"

Every situation is going to be different and until now most requests to work from home on a long-term basis (i.e. not to attend an appointment or wait in for a delivery), have been dealt with under Flexible Working legislation.

In summary, eligible employees have the right to request flexible working arrangements, which could include working from home. However, the employer is under no obligation to grant the request. If rejecting the request, the employer must provide a business reason for doing so. Any changes made are permanent changes made to the contract of employment and only one request is permitted in any 12-month period.

Until now, most of the ‘business reasons’ have revolved around issues such as:

  • Lack of communication
  • The need for team interactions
  • Concerns about employee productivity levels
  • IT infrastructures not being able to cope
    • Staff not having laptops
    • Staff needing printers
    • No remote access to company systems
  • Concerns about confidentiality and data protection as information ‘leaves the building’

Is the Genie out of the bottle?

With the outbreak of coronavirus here in the UK and the Government’s request that all employees work from home where it is possible and practical to do so, many of the above ‘business reasons’ used for rejecting requests have had to be overcome.

Many businesses have had to purchase laptops for staff, have introduced Zoom meetings and moved to used online platforms such as Google’s G Suite or Microsoft’s Office 365. They have had to find ways to deal with most of their previous concerns because, in order to keep their business running, their hand has been forced and in effect, they had no choice.

In requiring and enabling staff to work from home, there are a couple of additional considerations which many employers may not have realised.

Duty of Care – you have the same duty of care obligations to your employee regardless of where they are actually working. You need to ensure that they have the skills, experience and support to do the job you need doing. You also need to ensure that they are ‘ok’. Covid-19 has had devastating effects on people’s mental health. Whether it is as a result of the death of a loved one, personal health concerns or purely the impact of isolation, as an employer, you are obliged to ensure that your staff are ‘safe’ and ‘able’ to work from home.

Health and Safety – as an employer, you have to ensure that all employees are working in a healthy and safe environment, and this includes within their own homes. You need to carry out a risk assessment just as you would in a physical office. Is the employee able to sit at a desk with a proper chair with room to use a mouse and keyboard properly? Is there adequate lighting? Is the screen at the right height and free from glare? If the answer to some or all of these questions (and the rest of those on your risk assessment) is “no”, then as the employer you are obliged to ‘fix’ the problem, where reasonably practical to do so. Believe it or not, such assessments can be conducted remotely!

As HR specialists, we have been helping our clients to find practical and affordable solutions which work for both the employee as well as the business.

Examples I have seen in the last few weeks include:

  • Employers taking monitors and peripherals to employees and leaving them on the doorstep for contactless delivery
  • Employees being given a budget of £300 to purchase home office equipment such as a chair or a light
  • Employers buying laptops for all staff
  • Employees being given a slot to go to the office when no one else is around to enable them to collect what they need to ensure they are able to work safely from home

What happens next?

The big question is, what happens next?

We are currently waiting for the Business Secretary to release a series of papers which will make recommendations to businesses as to how to return to normality. They will only be recommendations and it will still be up to each employer to determine the most effective and efficient way forward for their business.

“For office-based staff, is working from home now ‘a thing’ or will employers still fight against people being ‘home-workers’?”

I recognise that not everyone can work from home and I also recognise that in many businesses such as those in the hospitality, retail and care sectors, working from home is not and will never be ‘a thing’.

For office-based staff, is working from home now ‘a thing’ or will employers still fight against people being ‘home-workers’?

Some of the things which are happening now, or are actively being discussed:

  • Employers will take the opportunity to have fewer people in the office at any one time to enable them to provide social distancing while at work
  • There will be flexible working hours so that people are not having to use public transport at the busiest times
  • Businesses may look for smaller premises as with less staff in the office, they don’t need as much expensive office space

Here are some additional things which I think may well happen as employers start taking a deeper look at their business:

  • Where possible and practical to do so, employers will move out of the centre of large towns and cities
  • Employees will look to work closer to home to reduce their use of public transport by walking or cycling to work
  • Employees will still be required to be in the office some of the time to ensure proper collaboration and team effectiveness
  • Some employees will want to be in the office as working from home does not work for everyone.
  • Employers will need to find ways to assess productivity differently so that they have confidence that when people are working from home, they really are working from home

What we know we don't know

For most business owners and employers, work-life has, over the past eight weeks, been unlike anything we have ever seen. Even those organisations with business continuity and resilience plans could not have imagined life as we have it today. While some businesses have thrived because of Covid-19, others have failed and gone forever. There is a third group and that is those who still have a fighting chance. These business owners should be planning now for what comes next. They should be excited about the opportunities which lie ahead of them and have plans in place for bringing their businesses out of lockdown safely and returning their staff to work.

As part of these plans, employers need to be thinking very seriously about some key employment issues:

  • Will employees or employers need ‘proof’ that employees are ‘fit enough’ to be at work?
  • Will staff will feel safe enough to come back to a physical office environment, and if they don’t, what rights they will have and what rights / options employers will have?
  • If an employee is ‘let go’ because they fail to return to the office, will they be able to claim constructive dismissal?
  • How are employers expected to ensure that employees maintain the social distancing rules at all times?
  • If employees chose to break the rules, who is responsible?
  • If someone can’t get to work safely, and can’t work from home due to the nature of their job, will there be statutory payments? Can they be legally dismissed?
  • If someone comes back to work and then contracts Covid-19, will they have to prove they caught it via work for the employer to be held liable under health and safety legislation?
  • If an employer believes that someone has Covid-19, will they be able to send them home?
  • What is the employer’s duty of care to all other employees given that it is thought that asymptomatic people can pass on the disease?
  • Will employers be required to provide PPE such as facemasks to all employees, even those sat at desks 2m apart from others?

There are a lot of questions here, most of which we do not have the answers to at the moment. Some of these questions will need to be answered before the lockdown eases, but others may only be answered through case law in the employment tribunal over a period of time.

As employers, it is your duty to take the best possible decisions you can at the present time with the information available to you. Make sure you educate yourself, take proper professional advise which is specific to your company (rather than consulting Dr Google) and keep evolving your plans so that they are robust, but flexible. Of course, the team at DOHR is here to help you, too!

This lockdown will end. You will get your business back on its feet, but it may well look different in the future. Different does not have to be bad and quite often it can be better. Use the experience you have gained to ensure your business’s future is bigger and brighter because of and despite Covid-19.

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