“At” and “From” – the Preposition Proposition. Here is a look at the traps that can lurk in a simple word.
The pandemic brought home and remote work on to the center stage, primarily as an emergency measure, employees working from spaces in their homes, without any assessment, training, or adequate management support.
Although many commentators claim this as an experiment with varying viewpoints on its success or otherwise, it needs to be re-stated that this was not Remote or Homeworking as it should be, with careful planning and preparation. As the pandemic effect begins to diminish and the overall results are being assessed, business leaders have been focusing themselves on the possibility of permanent remote working for employees within specific activities.
A number of high-profile companies have made headlines with sweeping announcements about allowing their employees to work ‘from anywhere’. When we examine the contractual and liability consequences of this, we can see a lot of headaches ahead, not only for employers and employees but the courts and the tax authorities as well.
Let’s look at this in detail.
In straightforward terms, working from home is a temporary arrangement, whereas working at home can be considered as more permanent, for example, in 2020 teams were obliged to work from home for a year. There are significant compliance-related differences between working from home and working at home. For legal, tax, payroll, contractual, and other compliance purposes, we need to get to grips with the difference between the two. Some defining questions would be:
Is the employee’s work location fixed (e.g. at home)? Does the employee have some flexibility over where they work (in the office but
at home sometimes with permission)? Or a medium amount of flexibility (in the office or at home whenever they want)? Or quite a lot of flexibility (work from anywhere in the state)?
Employees that will be seeking flexible working arrangements will be working from home and may go to the office only as and when needed.
In this context, home is not a specific location but means anywhere (within the the same jurisdiction) but the office. The degree of flexibility could vary – working from home or a co-working space, working from the same state (to maintain the the same jurisdiction for legal, health & safety, and tax compliance), or somewhere else.
Note: in an increasing number of jurisdictions, as per the new remote work laws and Acts, anyone who is working remotely
(outside of company premises) must have a ‘fixed’ place of work. They may actually work away from that ‘fixed’ place from time to time, but for all purposes, that is their legal place of work.
Work at home is a temporary arrangement that allows an employee to complete some of their official tasks at home. For example, if an employee takes half a day off to attend to some domestic situation, and completes the official tasks at home, then that employee is working at home.
Working at home does not require compliance or a larger duty of care and protection from the employer as it is a short-term, one-off arrangement.
This can also signify that the authorized location of work is fixed – at home. In these cases, the employee may not be permitted to work from a cafe, co-working space, or anywhere else, even if they work in the same jurisdiction.
Compliance requirements when working from home. Based on the location and laws, requirements vary, the most globally common
● Under which country or state employment laws will the contract between
employer and employee be enforced?
● Payroll compliance
● Tax compliance – under which tax regime will the employee fall? This
becomes a real issue if the employee is based in another country.
● Workplace & Ergonomic assessment – now mandatory in Ireland, UK,
Spain, and Germany.
● Risk assessment and employer liability insurance. These must take account
of conditions in and around the remote workplace. In some circumstances, premiums could rise steeply.
Legislation- and insurers – may well require an employer to assess a co- working space for workplace injury, ergonomics, and risk if they are contemplating that the employee will be working from these spaces for a prolonged period. Most insurers have allowed a lot of latitude during obligatory emergency measures, but this will change as soon unrestricted working becomes available.
Security of sensitive data will also need to be assessed under the new conditions, as well as the increased risk of leaks, ransomware, or viruses where an employee is using the same computer for both business and personal matters.
The lack of exact definitions has led to employers and HR professionals applying definitions and interpretations for their own convenience. More widely-accepted legal definitions will result from cases pending in law courts and employment tribunals around the globe and employers need to look ahead when planning hybrid or remote working practices, and provide for any possible contingencies.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.