Does it make good business sense to allow your employees to work from home? Does it make you a desirable ‘employer of choice’ for prospective employees? Does it ensure that valued employees can do work they would otherwise be unable to complete, from the comfort and convenience of their homes?
And importantly, if you decide to allow this flexibility for your employees, what are the legal issues?
The first thing to know is that there is no general legal obligation on an employer to permit or corresponding right of an employee to perform work from home.
Occasions when a legal obligation or right might arise are:
- A term of the contract of employment confers such a right.
A contractual entitlement to work from home will exist where either the written contract specifies that it is an entitlement or where there has been a subsequent written or verbal agreement that varies the written contract of employment.
There may also arise an agreement that is implied by the parties’ conduct such as a pattern of working from home over time with the support or endorsement of the employer.
- The right of an employee to request flexible working arrangements as per the National Employment Standards (NES).
Section 65 of the Fair Work Act 2009 sets out the NES entitlement to request “a change in working arrangements to assist in the care for a child” which might include working from home.
In order to be entitled to make such a request the employee must be either a parent or a person who has responsibility for the care of a child and the child must be either under school age or under 18 years of age and have a disability.
The employee must also have 12 months’ continuous service or be a long term casual employee with regular hours of work.
A request must be in writing, setting out details of the change in work arrangements and the reasons for requesting it. The employer must respond to the request within 21 days of receiving it and can only refuse the request on ‘reasonable business grounds’.
- Protections against discrimination in disability discrimination and sex discrimination legislation, and reasonable accommodation for a worker’s disability or family responsibilities in accordance with Equal Opportunity Law.
The refusal to permit work from home might infringe Equal Opportunity Laws in certain circumstances. For example, Equal Opportunity legislation protects employees from discrimination on the grounds of impairment, disability, pregnancy, sex and family responsibilities. Indirect discrimination, which is unlawful under such laws, occurs where a requirement is imposed which it is more difficult for a class of employees with a certain attribute to comply with.
It could therefore be argued that the imposition of a requirement to work from the office at all times is harder for those with family responsibilities, or those with mobility impairments, to comply with. In circumstances where work from home arrangements are genuinely requested to accommodate a disability or family responsibilities, the request should be given consideration and assessed against the inherent requirements of the position. It should only be refused if it would prevent the inherent requirements of the position from being performed.
It is important to remember that an employer continues to have duties under the Occupational Safety and Health Act towards employees who are working at home. Under the Act, employers and employees have obligations and duties to maintain safe work systems and safe workplaces. The Act defines ‘workplace’ to mean anywhere where employees or self-employed persons work or are likely to be in the course of their work. The definition is broad and captures home offices as well as potentially other areas of the home such as thoroughfares, kitchens and bathrooms. If work from home arrangements are permitted, steps must be taken to identify any risks to health or safety that arise from the arrangement or the nature of the workplace and to take reasonable steps to reduce or eliminate those risks.
Workers’ compensation insurance policies may require that you disclose to the insurer any work from home arrangements that are entered into. The insurer may also require you to have the home workplace assessed for occupational health and safety risks.
It is therefore advisable to have policies and procedures in place in relation to working from home arrangements dealing with matters such as conduct that is prohibited (like disclosing the home address to clients), emergency contact and keeping confidential information at home secure.
What should you do?
Before permitting work from home arrangements, an employer should:
- carefully consider whether the proposed arrangement is reasonable, taking into account the inherent requirements of the role, the particular flexibility requested and any obstacles to the success of the arrangement.
- document the decision-making process and, if it is decided to reject the request, be prepared to justify this decision.
- ensure a risk assessment of the home working environment is completed before the arrangement commences. You may either allow employees to perform a self-assessment or send someone to inspect the home office. The ‘working area’ should be clearly defined as part of this assessment.
- make clear the employee’s ongoing obligations with respect to identifying hazards and risks, complying with policies and procedures while working from home and reporting any incidents.
- consider whether it is desirable to ‘trial’ the arrangement. This allows you to assess whether the arrangement is likely to be successful before committing to it on a long term basis. Periodic reviews and termination of the arrangement with notice should also be considered.
- communicate the details of the arrangement to the employee in writing and require the employee to sign-off on the terms agreed. This will include details regarding sharing of costs, performance monitoring and confidentiality issues. Consider whether the contractual agreement is subject to any qualification such as an express term which reserves to the employer the right to direct the employee as to the location of work.
Need Legal Advice?
Flexible working from home arrangements take into account the rights, responsibilities, experience and lives of employees; and the needs, rights and responsibilities of employers. Perth employment lawyers Gibson & Gibson provides employment legal advice. When navigating the decision making process of this very 21st century phenomenon, be aware of your legal rights and responsibilities as an employer. If you tread carefully you can negotiate mutually beneficial arrangements which ensure happy, productive, well-balanced employees and a valued, positive and sought-after workplace.