by Aspect County

Hunter Law Q&A Employment Law

I’ve discovered that one of our employees who normally works from home, has been working from her parents’ house abroad. Should I allow this to carry on?
I see two main issues arising here: firstly, how the relationship between you and the employee has been affected by this, and secondly, whether it’s feasible for her/him to continue working abroad.

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In relation to the first point, check whether any boundary or requirement has been broken. I.e. did the employee know or should she/he reasonably have thought that home working meant in the UK and that any working from abroad should have been pre-authorised. So, check whether the contract or agreement permitting home working restricts the geographical location from which the employee can work remotely and/or requires them to inform you if their remote working location changes. If there is such a restriction and/or requirement, you would be justified in treating the breach of it as a disciplinary matter. Contractually, you would also be within your rights to refuse to continue allowing remote working from abroad. Before deciding how to proceed you should consider any mitigating factors such as whether the homeworking from abroad is temporary and/or in response to an emergency situation e.g. health of the parents. 

Additional employer liabilities under the laws of the country the employee is working in may arise depending on the nature of your business, type of work and contract under which it is performed. For example, where employment issues arise such as ill health or misconduct matters and you follow English law, the employee may be able to bring claims under the law of the country they are working from. Therefore, it is advisable to check the laws of the other country before taking any action. Think about health and safety requirements too – there may be obligations to comply with the regulations of that country in terms of electronic equipment, working hours, or seating. Tax liabilities in foreign jurisdictions can also arise and you should speak to your accountants about these. There may also be implications from an employer liability insurance perspective that you should discuss with your insurance provider.

Also consider the question of time zones and confidentiality. Will the employee be able to work at times that are convenient to your business or will there be a delay responding to emails due to time zone differences. Have you put enough safeguards in place to protect your confidential information and that of your customers? Do your IT licences cover workers abroad and are there are sufficient protections in place if data is being transferred between countries. 

Ultimately it is your decision as to whether you allow the employee to continue to work from abroad. If the employee actively took steps to hide their location abroad from you, then it is doubtful you would have sufficient trust in them to let the arrangement continue and you may wish to consider dismissal. 

I work in HR and I need to update the contracts of employment of our employees due to some changes to the business. Do I just send them a letter telling them what the updates are?
The situation with changing a contract is that if amendments are either permitted within the scope of the contract (such as minor changes) or are agreed mutually and voluntarily this is lawful. But if the employer seeks to impose a change to a fundamental term of the contract, then employees (with at least two years’ service) may have a valid employment tribunal claim against the business for constructive unfair dismissal. In such circumstances, a process of consultation with affected employees is the way forward. A good way to contextualise proposed changes can be to link the changes to a recent event, for example a pay rise or a change in legislation like the Good Work Plan, whereby you take the opportunity provided by the recent event to carry out other updates to contracts. The process of consultation means explaining the proposed changes together with the reasons for those changes, allowing some time for employees to consider the proposals and ask questions and arranging any consultation meetings that may be necessary. Following a two-way process, ultimately employees will be asked to sign up to the changes. If they refuse, then in some circumstances it can be permissible to terminate and offer to re-engage on new terms, but this practice has been subject to recent scrutiny.

If the changes relate to 20 or more staff and/or a TUPE transfer, then this process will be more complicated. Employers should also have regard to any union or other workplace consultation bodies that mean more onerous consultation requirements must be observed. 

Should employees who work from home receive the same benefits packages as those who have returned to work in the office?
There are two main schools of thought on potential benefits packages for those working from home. Some employers believe homeworkers should be paid less for a number of reasons: firstly, those working at home do not spend as much on travel so their salary should be reduced to reflect this. Similarly, those working at home do not contribute to the economy as much as office workers do, by supporting local cafes and restaurants and again it is felt that salaries could be reduced due to this factor. Finally, some employers have concerns that home workers (or some of them at least) are less productive than when working in the office. However, if that is a concern a more fundamental action than denying pay rises is advisable e.g. performance improvement plan. 

Conversely many other employers accept that provided the business outcomes are being fulfilled, there is no case for a reduction in pay. It is also arguable that those who work from home have increased utility costs (warming their space in winter, heating food and utilising fans in summer). Home workers often need to invest in setting up a safe and comfortable office space with storage and other required facilities. Additionally, many employers accept that working from home increases productivity due to reduced commute times, fewer back-to-back meetings, and improved work-life balance, therefore there are many arguments to retain the same salary for home workers as those based in the office. 

How can I persuade my employees to return to work in the office more often?
Unless there is a contractual clause or other agreement permanently entitling employees to work from home an employer may require staff to return to the office. Even if the employee has a right to work from home, if contrary to the needs of the business, employers may be able to require the employee to work from the office or alternatively face dismissal on the grounds of some other substantial reason” or place of work redundancy. However, dismissal is an onerous response that potentially wastes the investment already made in staff. It is also not without risk in relation to discrimination claims (see above e.g. from women who still maintain the main responsibility for childcare and for whom it may be more feasible to work from home rather than the office). Also, for any staff with over two years’ service dismissal for a fair reason will need to be coupled with a fair process in order to avoid possible unfair dismissal claims. 

Note, this article does not constitute legal advice. You should seek advice before taking measures in the workplace. If you have any questions about this article or any employment related issues.


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Jenna hunter