As the world begins to return to some form of normality, the issue of how – and whether – to continue facilitating flexible working from home is increasingly being considered by employers.

There is some evidence that employees who are spared the time and stress of travel (which can impact people even in a small island such as Guernsey) can be more productive across a working week, as well as being generally happier and more motivated in their work, and some employers may find that flexible working can reduce overheads by allowing for smaller physical office space.

Should employers wish to explore continuing to offer increased flexibility and working from home, there are some legal factors they would do well to consider:

  1. The Employment Contract. Employers are required to provide employees with a written statement of particulars of employment, which should include both the nature and the place of work. If there is to be a change in anything in the written statement of particulars, the employee must be given written confirmation of that change within four weeks. This will likely only apply in situations where the employer is adding in an active requirement to work from home – and in that case, employers would be well-advised to seek legal advice to ensure any changes made are lawful and achieve the correct aim.

 

  1. Data protection. Many employers will be classified as data controllers. As such, they have a duty to protect personal data against “unauthorised or unlawful processing” and against “accidental loss, destruction or damage, using appropriate technical or organisational measures.” “Processing” is widely defined and can include obtaining, storing, viewing, and transmitting. Employers who allow home working must therefore be vigilant to ensure that employees are fully aware of their obligations and any procedures they should follow, such as only using secure technology provided by the employer and properly storing paper files. The obligation remains the employer’s, and so if there is any uncertainty they should seek legal advice.

 

  1. Formal or informal arrangements? An employer will need to consider whether to actually require employees to work from home at certain times, or whether to implement a flexible and discretionary policy depending on employee requests. Each approach will give rise to different considerations in terms of contracts and ensuring employees are treated fairly.

 

There are many different factors to consider in implementing new employment policies or requirements, and it is always a good idea to seek legal advice before doing so. For any employment law questions contact Sarah Millar.