Can Home Working Be Made Permanent Through Custom and Practice?Posted in : First Tuesday Q&A NI on 1 June 2021 Issues covered: Coronavirus; Remote Working; Home Working; Custom and Practice
If employees have been working from home during the coronavirus pandemic, can they argue that through custom and practice, it has become a term of their contract of employment that they are entitled to work from home on a permanent basis?
During the coronavirus (COVID-19) pandemic, many employees have been working from home either:
- during lockdown periods, as a result of the legal prohibition on leaving home unless an exception applies, e.g. it is reasonably necessary for them to leave or be outside the home for the purposes of work;
- at other times, as a result of government guidance, e.g. that everyone should work from home if they can.
A contract can be made up of all or any of, express terms, implied terms, imposed terms or incorporated terms. As to whether a change to contractual terms has taken place, any contract may be amended at any time either in accordance with the terms of the contract itself or with the agreement of all the parties to the contract.
It would seem unlikely that this would be regarded as a permanent change to terms and conditions where the existing employment contract does not provide for homeworking, or for such a change to be made without the agreement of both parties and it is clear that employees have been working from home for a period because of the coronavirus pandemic.
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