Could a right to work from home be enshrined in UK law following lockdown?


The prospect of a return to the workplace in the coming weeks and months is certainly a divisive topic for employees. While there are those who cannot wait to return, many have grown accustomed to working from home, enjoying the perks of not commuting and a better work-life balance. Also, understandably, many have safety concerns. A recent CIPD report found that 44% of workers reported feeling anxious about the prospect of going back to work because of the health risks posed by COVID-19 to them and those close to them.

From an employer standpoint, although not true across the board, many businesses which have made the transition to home working have found that worker productivity has not suffered as a result, with Zoom calls, Slack and other technologies connecting employees with their colleagues and managers effectively.

Cognisant of the above positives and also aware of the savings to be made if no longer required to accommodate staff in large, centrally located offices, many companies have indicated that they will look to extend their work-from-home programmes (with one announcing that its employees can work from home "forever" if they so wish).

Seemingly live to the nation's mood, officials at the Business, Energy and Industrial Strategy department have mooted the possibility of enshrining a right to work from home in law as part of an array of options to help the UK transition out of lockdown. Such a move would be aligned with the Prime Minister's manifesto pledge to make flexible working the norm and the 2017 Taylor Review which said flexible working "has been shown to have a positive impact on productivity, worker retention and quality of work."

The UK would not be alone if it were to introduce such measures. Flexible working has been part of Finland’s working culture for more than 20 years. The Working Hours Act, passed in 1996, gives most staff the right to adjust their typical working hours by starting or finishing up to three hours earlier or later. The newly introduced Working Hours Act 2020 now gives the majority of full-time employees the right to decide when and where they work for at least half of their working hours. Germany has also recently announced that it will introduce laws giving employees the right to work from home.

However, what form could such legislation take in the UK? The UK could seek to amend the Working Time Regulations 1998 in a similar way that Finland amended its old Working Hours Act. Another option would be to make existing flexible working legislation more employee-friendly by reducing the barriers to making a flexible working request (FWR) and, conversely, further limiting employers’ grounds of refusal. Other changes could be to allow FWRs to be made more than once every 12 months, while the cap of eight weeks' pay on compensation for an employer's failure to respond adequately to an FWR could be raised.

As the country recovers from the economic impact of the COVID-19 pandemic, it is unlikely that any legislation in this area would provide employees with an unqualified right to work from home. There would need to be an element of flexibility for employers to allow them to meet business need. While the form of any such legislation is unclear, following the COVID-19 pandemic, it is certain that the direction of travel is towards ever greater numbers of people working from home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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