The good news for employers is that the recent legislation governing access to flexible working does not prevent employers from refusing employees’ requests to work flexibly – and flexibly includes requests to work from home.

The bad news, however, is that not only do employers have to consider any requests employees to work flexibly before giving a response, but they have to go through a fairly lengthy procedure.

However, another piece of good news is that the right to request flexible working only applies to "qualifying employees".

• has, on the date on which the application for a contract variation is made, been continuously employed for a period of no less than 26 weeks; and
• is the mother, father, adopter, guardian or foster parent of a child who is under the age of 6 when the request is made (or 18 if child is disabled); or is married to such a person and living with the child, or is the partner of such a person; and
• has or expects to have responsibility for the upbringing of the child

• burden or additional costs
• detrimental effect on ability to meet customer demand
• inability to reorganise work among existing staff
• inability to recruit additional staff
• detrimental impact on quality
• detrimental impact on performance
• insufficiency of work during the periods the employee proposes to work
• planned structural changes
• any other ground the Secretary of State may specify by regulations.

If the employee brings the matter before an employment tribunal, the employer will have to demonstrate that he went through the procedure, and a failure to implement the procedure can lead to an award of compensation to the employee. The tribunal will not, however, have the power to substitute its judgment on the business reasons for the refusal for the employers, but will be able to send the case back to the business for reconsideration.

What can the ‘qualifying employee’ request?

• hours of work
• times of work
• where, as between his or her home and a place of business of the employer, the employee is required to work
• such other aspect of the employee’s terms and conditions as may be specified in regulations

• flexitime
• home working
• job-sharing
• teleworking
• term-time working
• shift working
• staggered hours
• annualised hours and
• self-rostering

Detriment
An employee has the right not to be subjected to any detriment by his or her employer on the ground that the employee has exercised his or her right to request flexible working. Any employee who is dismissed for exercising his or her right will be automatically unfairly dismissed – i.e. the question of reasonableness will not arise.

However, another less obvious thing for employers to consider is what is meant by detriment. According to a survey of human resources specialists The Work Foundation, home workers are not given the same access to training and mentoring opportunities as other employees which can mean that homeworkers, inadvertently, miss out on promotion and pay rises. This is a risk which employers need to be aware of and address.

What problems/issues can arise once you have employees working from home?

Data Protection
If you permit employees to work form home you need to consider security of data when it is not on the company’s premises.

The 7th Data Protection Principle requires that appropriate technical and organisational measures are taken to protect data from unlawful loss, destruction or disclosure.

Check security:
Often a home computer could be used for other purposes – children’s homework etc – or possibly the home office doubles as a guest bedroom. The data is still your responsibility – you remain the data controller and if there was any breach of the security of the data when it is in your employee’s home you would be liable.

The ‘appropriate measures’ required by the 7th Principle may include a home visit by the employer to check the physical security of data (although you would need to be careful that there is no concern about an employee’s privacy). Firewalls and other protection available at work should also be installed on the home computer. Consider adding something to your employee handbook which indicates you will need to take these measures before you allow home working.

You need to make a risk analysis in view of the security in place and the sensitivity of the data being processed from an employee’s home. If the data is not particularly sensitive – perhaps just the name of a director of the suppliers you deal with – then you may decide that the lower level of security offered by homeworking is still acceptable. But if your employee is handling sensitive data – perhaps a senior HR worker is working from home – then greater care is needed.

Transfer to home:
Also consider the transportation of data between work and office. Usually the data is stored on computer and there may be no problem of physical security (as long as the employee did not intend to process personal data on a laptop on a crowded train!). But consider the employee who carries files home. Is there any personal data appearing on those files? If so they should be hidden from sight on public transport.

Also if data is sent to home by email or via the Internet – is this secure enough for the type of data being sent?

Outside Europe:
Other issues arise if an employee intends to take personal data out of the UK – perhaps on holiday or for a work trip. If this involves data being transferred outside of Europe, further considerations will apply. The Eighth Data Protection Principle requires that data can only be transferred to a country outside of the EEA if the recipient country has an adequate system of data protection in force.

It is unlikely you would wish to investigate the data protection system of Barbados if you intended to take a bit of work away with you but this is precisely what the 8th Principle would require. You can avoid having to do this if you have the consent of the individuals whose data is to be taken out of the EEA but, again, this is unlikely to apply in many circumstances.

Sensitive data:
Employers in these circumstances often make a risk assessment. I usually recommend that, at the minimum, sensitive data is never taken outside of the UK without the consent of the individual concerned. Sensitive data is defined in the DPA as being data about a person’s health, religion, sex life, politics, ethnic origin. criminal record and membership of trade union.

Even within the UK, the handling of sensitive data is subject to much stricter controls and any transfer of data outside the office where (hopefully) those controls are already in place, should only be done after careful consideration of the security measures in place in respect of that data.

Health and Safety Issues
An employer is under a duty to take reasonable care that his employees are not subjected to any unnecessary risks of injury. That is obviously much easier to do when the employee is working under the direct supervision of the employer at the employer’s premises, however, it may be more difficult when the employee is working from home. And whilst at present home workers are not policed for health and safety, that may not affect the employer’s liability for personal injury.

Where possible the employer should try to ensure that the home office complies with the same standards of health and safety as at the work place.

• The keyboard
• The desk
• The chair
• The working setting
• The working practice

The keyboard should be fairly straightforward as most keyboards at the moment are well designed ergonomically. However, if you provide a laptop then it’s a good idea to provide an external keyboard and possibly, if the computer is used a lot, an external monitor too. Those on the laptops are designed for occasional use, but since the ideal position for typing is with the hands above the keyboard and the ideal position for the monitor is at arm's length, 10cm below eye level, no laptop can actually do that and as employers of home workers you could find yourselves liable for a personal injury claim for example for RSI. Just as you might provide wrist supports for office workers, you should think about doing the same for home workers.

In addition to providing the computer, you might need to think about providing an adjustable chair and also ensure that the table where the home worker is to be working is of the right height/size for the job that is going to be required of him.

The employee should be reminded that he should take regular breaks from computer work and that he should treat his home office as a designated work space and should not, therefore, work with the computer on his lap in front of the TV!

The home is a dangerous place. Every year 3m accidents in the home result in a hospital visit. There are 4,000 deaths in the UK due to home accidents and 43% of home accidents involve falls. Some of the hazards include: fatigue due to long hours, physical pain and injuries due to poor ergonomics and stress due to isolation, insecurity and conflicting demands being among them. In an office people are there to help employees manage their jobs but at home employees have to do it themselves and don’t necessarily have the skills.

Best practice for employers is to start with a risk assessment. This should focus on hazards and ways to eliminate them.

Working Time Regulations
The statutory maximum 48 hour week is difficult to monitor if the employee not in the office.

It is therefore important to have well drafted policies and procedures and make provision in contract of employment for the employee to be required to record his or her working time.

It is also important to remember to put an opt out clause in the contract. If the employee signs the contract with the opt out clause included, then that absolves the employer from having to record working time.

Whist the employee can always opt back in, this is less likely if he or she is working from home as opting in then requires the employee to keep an accurate record of hours worked.

Further information
If you would like further information please contact Caroline Walker, head of the Employment Department at Sprecher Grier Halberstam LLP, Solicitors.This article is based on UK law, is for general guidance only and should not be relied upon without specific legal advice:

Caroline Walker 020 7544 5625 carolinew@sghlaw.com