The concept of employees working from home is not a new phenomenon but the trend is expanding rapidly worldwide – and could start taking root here in Bermuda.
In the United States, estimates are that roughly six million employees will work from home a majority of the time this year, and about 63 million employees will work from home occasionally.
In Bermuda, employers must be aware of the issues they face whether they currently have home-working employees or are considering such an arrangement in the future.
Unlike the United Kingdom and other jurisdictions, there is no specific legislation in Bermuda that encompasses flexible or home-working. Indeed, the term "home-worker" (or similar) is not defined in the Employment Act 2000 ("the Act"). Given this, home working is a privilege rather than a right in Bermuda.
However, irrespective of where someone works, if a person is employed for more than 15 hours a week wholly or mainly in Bermuda for remuneration under a contract of employment, they are an "employee" for the purposes of the Act and fall under its remit (there are a few exceptions to this which I will not go into for the purposes of this article).
As home-workers are protected by the same employment legislation, what does this mean practically for employers?
Firstly, the contract for a home-worker should be drafted to reflect their place of work - that is, their home. Further, most employers will require the employee to attend at the office from time-to-time (for client meetings or disciplinary issues, etc.) and this should be clearly included in the contract.
Holiday entitlement should not be different to that of any office-based employee. Home-workers will be entitled to the full-time minimum of two weeks holiday (as stipulated by the Act) unless employers allow further time. The same applies for paid sickness absences and other benefits.
Employers must also remember that a home-worker's house is their castle. There is no implied legal right that an employer can enter the home of an employee without the employee's consent. Therefore, the employer should reserve the right of entry in the contract of employment, for example, to enter the employee's home in specific circumstances, such as installing computer equipment or to recover any confidential information.
The implied duty that employees should not disclose confidential information or use any such information for any purpose other than the employer's business interest applies to home-workers. However, in practice, confidentiality is much more difficult for an employer to police or monitor when the employee is not in the office.
Employers should include an express confidentiality clause in the employee's contract, making clear what information is confidential and how the employee should keep that information secure at their home. For example, the employer may want to consider passwords that would stop access to its data by the employee's relatives or household members and provide items such as a locking cabinet or shredder to ensure that company documents are secured or discarded properly.
An employer will be able to impose significant protection concerning all work an employee does in respect of or on behalf of their employer and access to that information should be agreed. However, an employee's contract must be reasonable. For example, a clause providing that an employer can enter an employee's house at any time, day or night, to check their home computer would not be a reasonable or a fair contract term.
Elsewhere in the world, it is generally recognised that more women than men seek working-from-home arrangements, mainly as it is accepted that women often bear the majority of child care responsibilities. There are no statistics for this in respect of Bermuda but it is unlikely that Bermuda is any different.
Employers must therefore be very wary of possible discrimination under the Human Rights Act 1981 ("the 1981 Act") when considering an employee's request to work from home. If a request to work from home is not considered seriously because it comes from a man, when the same request made by a woman would be properly considered by the same employer, then a claim of direct sex discrimination under the 1981 Act could apply.
There is no specific legislation in Bermuda that requires employers to seriously consider any flexible working request.
However, while there is no direct duty on an employer in this regard, given the above, I would always advise that any such request be considered seriously in terms of whether it is a viable alternative to office working.
But it should always be remembered that allowing employees to work from home requires a huge amount of trust, as they cannot be monitored to any great degree to ensure that they are doing the job that employers pay them to do.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
