It is not news to say that the pandemic has led to a significant increase in people working from home.
The current trend attracting a large amount of commentary is whether there should be a push to “return to the office”. I will leave that debate to others but it is interesting that a number of employers are incentivising their employees to return in various ways. Separate to this you will probably have read about the changes to the law on flexible working – see for example Changes Coming To Flexible Working | Actons Solicitors.
This article is not about flexible working or the merits of home working compared with office working. It is about the thorny issue of implied terms in employment contracts. Despite the idea of flexible working being a “trendy” topic, my experience (admittedly anecdotal) has been that employees are not making more applications for flexible working now than they did pre-pandemic and, in fact, they may be making fewer. Why would you make a flexible working request asking to work from home when it is already being allowed as a casual practice?
I envisage that disputes may start to emerge where employers decide to tighten up practices on home working having decided that it is beneficial to get people back to the office on a consistent basis. Employers are likely to point to employees’ contracts of employment which still stipulate their place of work as being the office. Employees may then make a counter-argument that they have an implied right to work from home due to “custom and practice” having done so since the pandemic began. This leads on to the tricky issue of when is a term implied into an employment contract as a result of custom and practice?
To become an implied employment term, a custom or practice must be:
- “Reasonable, notorious and certain”; and
- followed “because there is a legal obligation to do so.”
A particular problem employees will face in the “return to the office” scenario highlighted is they will likely be arguing for an implied term that contradicts the express term in their contract stating their place of work. In addition, hybrid working policies or even unwritten practices, are in most cases unlikely to be sufficient to establish with certainty an absolute right to work from home as most employers will have made clear in some way that office working may be required depending on the employer’s needs. The fact that home working arrangements are likely to have been a direct result of the need to quickly adapt to the pandemic and have then continued may also make it difficult to meet the legal test of establishing an implied term. However, employers should bear in mind that the longer practices are followed and the more clear-cut and widely followed they are the stronger an employee’s argument may become that the practice has become an implied term.
The conclusions for employees and employers to draw from the analysis above are:
- If employees want to ensure a contractual right to work from home they should make a flexible working request seeking a permanent change to their terms of employment permitting home working; and
- Employers should have clear hybrid working policies, or similar agile working policies, which make clear that remote working is not a contractual right so as to mitigate the risk of arrangements unwittingly becoming an implied term via custom and practice.
Posted on September 6, 2023