The shift to homeworking and hybrid arrangements has surged post-pandemic, but with potential pitfalls.
- Remote work policies need precise definitions to prevent contractual implications.
- Some employers push to end remote work, citing collaboration benefits, yet face legal challenges.
- Employees may argue implied contract terms from long-standing homeworking practices.
- Consistent policy enforcement and consultation are crucial to manage flexible working.
Since the onset of the Covid-19 pandemic, remote and hybrid working arrangements have grown significantly among office-based employees. While some used homeworking temporarily during lockdowns, many have continued long-term. Employers must define these arrangements through clear policies, stipulating frequency and conditions such as performance monitoring and data security. These policies ought to be non-contractual to avoid unintended irreversible agreements.
Many employers have found productivity gains from flexible working arrangements, but others aim to curtail homeworking to enhance in-person interactions. This shift can pose legal difficulties, particularly if policies are vaguely drafted or unenforced. If an employee’s remote working has been satisfactory, enforcing a full return could breach mutual trust, possibly leading to claims of constructive dismissal. Decisions for office return should be business-driven and involve transparent employee dialogue, providing adequate change notice.
A significant risk exists that homeworking may become an implied contract term if continued without appropriate policy measures. Practices may become entrenched as ‘reasonable, notorious and certain’, complicating desired changes. Non-contractual policy expression can counter such arguments, but prolonged customs might still imply terms.Consistent policy monitoring and adherence are vital to prevent such scenarios.
Employers should realise that homeworking arrangements, even if termed discretionary, may lead employees to seek formal flexible working requests or argue for reasonable adjustments, particularly for disabilities. Thus, it is essential that these policies are consistently enforced and communicated clearly.
Effective policy management and transparent communication are essential to navigate the legal intricacies of flexible working arrangements.
