Flexible Working and the Law

Flexible working is transforming the world of work and the UK Government has announced that in April 2009, it plans to extend the right to request flexible working to parents of all children up to 16. This means that millions more employees will soon be flexible working and the days of working 9-5 in the office will be a distant memory for many.

But many employers are unsure about their legal responsibilities in this new world of flexible working.

The simple answer is that they are exactly the same - even if your employee is now teleworking from a garden office at their home or from a WiFi hotspot whilst they are working on the move.

The company has precisely the same duty of care to the employee whether they are working on the company's premises or teleworking from a remote location. This includes if they are working at a home office, a garden office or at an Internet café somewhere on the M5.

It is news to many employers that all Health & Safety Executive (HSE) workplace legislation includes workplaces in the home and that they will need to think afresh about their procedures, in order to fully embrace flexible working within their business and minimize risk.

Risk assessments should still be carried out for example on all display screen equipment that your employee is using. What's more, if your business has a policy of PAT (Portable Appliance Testing) electrical equipment, then equipment used in a home office should be tested as well. And any procedures your company may have for accident reporting and so on should still apply when your employees are flexible working or teleworking.

In fact, it is worth knowing that every single one of your legal responsibilities in the workplace are carried into a flexible working environment, including Health & Safety, Data Protection and Discrimination.

Overall, there are many advantages of flexible working and it represents a huge opportunity for businesses, increasing productivity and improving work life balance for employees. However, as with all change, it demands new thinking and a fresh approach, which can be challenging.

One of the challenges is rethinking the way that the law now applies to your business and redefining the place of work to include remote locations.

A very good starting point is to ask your employee to complete a self- assessment checklist of the places where they will be flexible working. Common sense and care will help avoid most potential pitfalls and a lawyer should be consulted for advice on any areas that remain unclear. One of the biggest dangers facing those flexible working at remote locations is the simple and obvious danger of trailing leads and wires.

Apart from Health and Safety, the other main area where employers are often concerned is how flexible working will affect the tax or insurance situation.

In fact, there are normally no tax implications for employees who are remote working or working from a home office. If the employee is given equipment to work flexibly, perhaps a laptop for example, and this is also put to personal use this could incur a benefit in kind tax liability, so that is something to watch out for.

Importantly, employees who work from home should always inform their home insurer, especially if there is additional valuable equipment now kept in the house.

There can be significant tax implications if an employee working from a home office starts to claim things like a proportion of council tax, rates and décor for the home office. This could then make the employee become liable for capital gains tax when the property is sold - a situation they will certainly want to avoid!

Finally, employers often wonder if they need to provide a new contract of employment if their employee is now flexible working.

In a nutshell, the answer is 'No'. Provided the existing contract is legal, the employer can provide a 'Flexible working agreement' covering matters like the extent of flexible working, the agreed ways in which an employee will be contactable when flexible working, whether or not the flexible working arrangements are for a limited trial period and so on.

By getting up to speed with the legal and tax implications of flexible working and taking heed of a few simple guidelines, businesses can step confidently into the brave new world of flexible working, enjoying increasing productivity and improved staff retention as a result.