When flexible working goes wrong – five key points for employers

25 April 2019 | Applicable law: England and Wales


The worry that an employee might not be working from home as expected is nothing new. However, as more companies adopt flexible working practices and allow employees to work from home, this issue is becoming more prevalent. If employees are less visible to employers, working patterns and behaviour become harder to monitor.

Say, for example, an employee who is working from home seems to be unresponsive throughout the day and is regularly missing deadlines. Or you suspect somebody is not working the hours they are contracted to, because they're logging off early. It's quite understandable for a company to want to protect themselves, and organise some kind of employee monitoring before giving them much more freedom. A question we are often asked by employers is: How can I protect myself and what can be done to prevent home working policies being abused?

If you suspect an employee isn't working from home effectively

It is of course understandable if your immediate reaction is to be defensive when you feel that your company may have been exposed to wrongdoing. However, prevention is better than cure, so it is always advisable to have a policy in place before employees start working flexibly.

This should set out the expectations on employees and make clear that if flexible working is to continue, the guidelines must be followed. If you suspect that an employee isn't meeting these expectations, then an informal email or conversation reminding them of the requirements may be appropriate, and as a last resort, disciplinary action might be necessary.

The recent case of Spragg v Richemont UK Limited highlights the dangers of reacting too severely, too soon. The employer instructed a private surveillance company to follow an employee who was on sick leave. The Tribunal found that this was overly intrusive and disproportionate, especially since the employer didn't appear to have tried anything else first. Indeed, this action was found to be victimisation. So, private surveillance of an employee should be treated with extreme caution.

What can you do?

If you suspect an employee is abusing their flexible working privileges, you should consider these five points to avoid a potential Tribunal claim:

  1. Don't jump to conclusions – remember that an employee could be experiencing problems at home or at work, and that these may not be obvious at first. Try to be open and sensitive to this.

  2. If somebody is 10 minutes late logging on, don't throw the book at them straight away. Trusting your employees can result in a much better, and more productive, working environment.

  3. Have robust policies and procedures in place, setting out expectations on employees and making it clear what may happen if these aren't followed, e.g. the option to work from home could be revoked.

  4. Remind employees of these policies and procedures in an informal email, or arrange to have an informal chat with them, if you believe there are issues.

  5. Consider whether flexible working suits your business before introducing it, and think about whether it is appropriate for all levels of staff.

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This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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