By Alison Wallace, head of employment practice, Steptoe & Johnson

Homeworking has a long way to go before it gains acceptance by UK employers according to a recent survey or 640 companies across Europe; the survey shows that two thirds of UK employers do not trust their staff to work from home for fear of falling productivity levels. Whilst UK companies agree that homeworking would improve employees’ work life balance, only 46% of those UK companies polled currently offer it.

What is homeworking?

Homeworking is not a new concept. Traditionally homeworkers have tended to be relatively low paid piece workers but with advances in information and communications technology and its greater accessibility, it is now possible for much wider groups of employees to take advantage of working at home.

If a business is considering moving some of its employees to teleworking, as it is now labelled, there are a range of issues to be considered.

What is teleworking?

Teleworking is a form of organising and/or performing work using information technology in the context of an employment contract/relationship where work which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.

There is no definition of teleworking in UK law. In nearly all cases, telework will be voluntary both for the worker and employer concerned. An employee cannot insist on working from home nor can the employer insist the employee changes from an office base to a home based arrangement. In many circumstances, the move to telework is a change in working practice for an employee who has been office based.

The employer will therefore have to issue a fresh or revised statement of particulars to reflect the current position. It would be unusual that in the variation to include telework the employee’s status changes. Whilst pieceworkers and other traditional homeworkers may not be employees, an office based employee moving to working from home would be unlikely to want to give up their employed status unless the attractions of self employment were overwhelming.

Indeed, if the only change to the employee’s position is that they are working from home on a full time or part time basis, the Inland Revenue are unlikely to accept that the employee has become self employed.

Telework is likely to be reversible. Both parties should have the opportunity of reviewing the situation if the arrangement appears to be unsatisfactory. Teleworkers do benefit from the same rights including statutory rights of comparable workers at the employer’s premises. In order to take into account the particularities of teleworking, however, the following aspects of the contract need to be agreed and amended:

1. Place of work
2. Hours of work
3. Extra responsibilities or duties over and above those already agreed
4. Expenses policy
5 Allowances for business rates, heating, lighting, wear and tear on the house
6. Provision of equipment
7. Provision of telephone and fax and ISDN lines
8. Insurances
9. Holiday and sick leave arrangements
10. Data Protection
11. Security
12. Privacy
13. Health & Safety
14. Organisation of work
15. Training
16. Taxation
17. Collective rights

An employer must decide what kind of work lends itself to teleworking. Not every role can be carried out at home and not everyone is suited to teleworking either. The teleworker should be self reliant, disciplined and able to complete work to schedule deadlines outside the office environment.

Clearly, an employee cannot work from home and also be responsible for childcare. Questions about domestic and family commitments should be asked as well as questions about the home environment.

One of the advantages of teleworking is that is allows the individual greater flexibility in performing work. It may not therefore be desirable or practical to monitor the teleworker’s hours of work. An agreement could be reached at a number of maximum hours to be worked per week or per month with core hours in which the teleworker should be available to take telephone calls or to be at meetings. A teleworker is still protected by the Working Time Regulations 1998.

The salary and benefits package should be no less favourable than office based employees.

The employer will often have to provide equipment at home for the teleworker to use and therefore it is important to ensure that the employer has a right to enter the home to install, maintain and service the equipment, to carry out risks assessments and to recover the property on termination of the employment.

The teleworker must therefore consent to the employer entering the premises for these purposes. In this context, any equipment provided should be covered by the employer’s insurance policy. It would be unusual for the employee to have to provide cover either under his standard home injuries policy or over and above this, but if that is relevant, then the employer would have to reimburse the costs involved.

The employer remains responsible for the teleworker’s welfare and health and safety so far as is reasonably practicable. The employer must therefore conduct a suitable and sufficient risk assessment of all the work activities carried out by the teleworker to identify any hazards and assess the degree of risk. This would cover stress, equipment and accidents.

Finally, teleworkers should check that they are not restricted by the terms of their mortgage terms or tenancy agreement for example by using their home for business purposes.

Businesses which do not consider greater flexibility and teleworking practices do run the risk of excluding growing sections of the workforce from a business’s potential pool of talent. Provided the fear of loss of control is diminished with greater productivity and reduced overheads, then the business case for supporting teleworking will be clear which benefits rather than threatens the bottom line.