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New practice: Employers whose workforce will continue to work from home as COVID-19 restrictions are removed should formalise matters to avoid legal claims

Author: Atom Content Marketing

Published: 01 Jul 2021

Employers who plan to continue to allow home working on a significant scale, even when no longer required to do so under COVID-related restrictions, should ensure they formalise matters rather than continue to rely on any temporary, informal arrangements that applied during the restrictions.

Employers should review whether employment contracts, handbooks and policies need to be changed (and a specific new homeworking policy introduced) given the switch to home working. Amongst other things, you might consider:

  • including a ‘mobility’ clause allowing you to determine where your employee is required to work;
  • restating working hours;
  • defining new staff structures and reporting lines;
  • setting productivity performance standards;
  • providing new sickness absence procedures;
  • redefining ‘gross misconduct’;
  • requiring attendance at work for a specified number of days;
  • specifying who pays which home working IT and domestic costs;
  • ensuring data protection and health and safety laws are observed by home workers.

Where you plan to insist on ongoing home working, ensure this is not unreasonable. Otherwise, you could face legal claims that you are breaching the implied duty of mutual trust and confidence between you and your employees, so that they are entitled to resign and claim compensation for ‘constructive dismissal’.

Check whether you need to communicate and consult (which must sometimes be done according to a formal process) with your workforce about any changes, and get their specific, written agreement. If they will not agree, consider dismissing them and rehiring them on new terms, taking care not to unlawfully discriminate between employees.

If it is employees who are asking to continue working from home, consider agreeing on a trial basis initially, until you are sure it will work out.

Ensure employees, managers and HR personnel are appropriately trained.

Operative date

  • Now

Recommendation

  • Employers who plan to continue to allow home working on a significant scale, even when no longer required to do so under COVID-related restrictions, should ensure they formalise matters rather than continue to rely on any temporary, informal arrangements that applied during the restrictions.
Disclaimer

This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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About Legal Alert

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.