Recent research by the Policy Institute and King’s College London has found that three-quarters of London’s workers think they will never return to the office five days a week.
Staff are “more productive, more energetic, more full of ideas” when they are in the workplace alongside their colleagues; “my experience of working from home is you spend an awful lot of time making another cup of coffee and then, you know, getting up, walking very slowly to the fridge, hacking off a small piece of cheese, then walking very slowly back to your laptop and then forgetting what it was you’re doing”.
These are the words of our Prime Minister with respect to working from home and the benefits of employees working in the office, or whatever their place of work is where it isn’t also their home.
Whilst the first comment may be true as a general rule and the second may be true for some people, since the COVID-19 pandemic home working for at least part of the working week has become the norm and is probably here to stay. However, many companies would prefer to see their employees return to work full time and are attempting to make this compulsory. In such circumstances, does an employee have a right to work from home?
The short answer is that it depends largely on the terms of their contract. Most employees’ contracts will not have been changed since the pandemic and will likely state the employer’s address as being their place of work, with some discretion for the employer to vary the workplace if the company moves office, for example. These employees will have no automatic right to work from home. Other employees who have started with their employer since the onset of the pandemic may have contracts which allow them to work from home, or to work from home for at least part of the week.
If the employer has not implemented a policy on working from home or stated that any working from home measures were open-ended, employees will struggle to make an argument that, because they were permitted to work from home during the pandemic, this has become a legal right. However, they will be able to make a flexible working request and the employer will need to ensure that they take into account in such circumstances how well home working worked during the pandemic in deciding whether to reject the application for one of the permissible reasons.
In the meantime, recalling all employees back to work and having a blanket rule that no home working is allowed (other than when the employee has to deal with an emergency, let a tradesman in, etc.) will probably pose more difficulties for certain types of workers than others and thereby risk indirect discrimination claims. Many parents, predominantly mothers, have enjoyed the benefits of working from home not only to arrange childcare and school drop offs and pickups but also to spend more time with their children. Many disabled employees have likely been able to be more productive, energetic and full of ideas as a result of working from home when they didn’t have to grapple with a tiring commute to and from the office.
Having apparently neutral policies which put women or disabled workers at a disadvantage could amount to indirect discrimination unless the policies can be objectively justified. In most office based jobs, employers will struggle to justify a general prohibition on ever working from home, especially in relation to roles which people were able to carry out from home during the pandemic . Acas recommends consulting with staff on remote working and having a home working policy.
Clearly in agreement with the Prime Minister and wanting him to follow up on his scepticism in relation to home working, Alan Sugar has deemed working from home “a total joke” and called those that do so “lazy”. Evidence however challenges Lord Sugar's and the Prime Minister’s views, seeming to suggest that the time gained from not having to commute will often lead to an increase in work output.
While it may be entertaining for some to see Lord Sugar saying “you’re fired” each week on The Apprentice, doing so to employees that ask to work from home will risk employees taking their employers to the Employment Tribunal. Employers will need to balance, therefore, the benefits and drawbacks of home working and consider a flexible approach that takes account of each employee’s individual circumstances and manages the risk of disgruntled employees seeking legal redress through the courts.