Remote Working and Custom and Practice

Posted in : Seamus Says - Employment Law Discussion on 3 December 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Remote working; COVID-19

Scott: Could employees establish a permanent change in their contract due to the extent of remote working and the change of their usual contract, as for most it has been in place for a number of months?

 I think that might be stretching a little bit given that the home-working situation at the moment is only a reaction to lockdowns and COVID being in the environment, I would imagine. But what it does tie in is it will be very difficult . . . and we've discussed this in the past . . . very difficult for employers to refuse at least an element of home-working going forward.

Where they've been living with it and accepting it . . . it will soon be a year. Come this spring, it'll soon be a year that we've been putting up with people being able to work from home, at least in service industries, or some of them. It's going to be very difficult to not justify it.

 But what about that point about it becoming . . . if you let it slide for another year and another year because you're not quite sure what's happening? Does that become a custom and practice, Seamus?

Seamus: Well, I suspect at the minute, no, it wouldn't be custom and practice. My view would be that . . . I would agree 100% that it's reaction to the pandemic that is on-going. I think will be very difficult for someone to say, "Well, I worked from home for a period of six months and therefore my contract has now been amended". I think that we're all working on the principle that the situation is fluid and this is just a reaction and a necessity at the minute.

I also agree 100% that it could be very difficult for employers to argue. Because I think that the majority of us have found that working from home, works. It's not perfect and it's not brilliant, but it's workable. And it helps people in terms of flexibility and work-life balance and everything else as well.

Ultimately, though, businesses are going to have to look and say, "What is the need here?" And I think that businesses, primarily, are there to make money, to make profit, and the business is entitled to run as efficiently as it can do and in the way that it wishes to, to be as profitable as possible.

So I do think that there's a decision there for employers to make. But I think, ultimately, it's about getting the balance right.

I would have concerns, I think, if a client approached me at this point and said, "Look, I've now been working at home for six months. Is that not a permanent change to my contract of employment because there's custom and practice?" My view would be no, at this point in time, we're all in the same boat. It's entirely reactionary to the pandemic.

Your argument would be better if once the pandemic settles and you've been working at home for six months. Then that's a better argument.


This article is correct at 03/12/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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