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This Remote Work Agreement (also known as a home-working agreement, or a flexible work agreement) can be used by an employer in the United Kingdom to create an agreement for a current employee to work remotely.
At the start of an employee's employment, their employment contract will take the form of a written contract. This contract will contain the particulars of employment. The particulars of employment will ordinarily cover the place or places of work where the employee shall be required to work.
The contract of employment may provide sufficient flexibility/mobility regarding the employee's place of work. For example, it may say that the place of work is subject to change (although any such clause cannot be unreasonable in order to protect the employee from unfairness). In the event that there is no such flexibility within the contract of employment, the employer will need to take steps to address the formalities of the remote working agreement.
Where there are changes to the employee's contract of employment, the employer is required to provide the employee with a "statement of changes" (This requirement is set out in law: at section 4 of the Employment Rights Act 1996 in England, Wales and Scotland; or Article 36 of the Employment Rights (Northern Ireland) Order 1996 in Northern Ireland). The statement should be provided to the employee within one month of the change to contract of employment (i.e within one month after remote working has commenced).
However, it is important to note that a statement of change acts only as evidence of a change to the contact but will not formally vary the existing contract. An employer will therefore need to either:-
1. provide to the employee with a written document setting out the new terms and specifically amending the contract; or
2. an employer may choose to create a brand new contract of employment to cover remote working, which the employee and employer would then re-sign as a new contract.
This document can be used for the first option set out above, where an employer wishes to amend the existing contract of employment. The document can therefore be used to set out the details of the remote work agreement in order to formally and expressly amend the terms of the contract so that the place of work can be changed.
A remote work agreement may provide for an employee to work exclusively from home or alternatively it may provide for the employee to work at home in addition to their usual place of work.
It is also useful for an employer to have a working from home business policy, which outlines the approach an employer shall take in the management of remote working. It is also important for employers to consider how data protection/processing and confidentiality can be maintained during a Remote Work Agreement. Businesses may wish to have an additional specific Confidentiality Agreement to address this specific issue.
How to Use this Document
The change to flexible working may have been initiated by the employee making a request for flexible working. An employee has the legal right to make a request for flexible working (including remote working) after twenty-six weeks of employment.
Where an employee has made a formal request for remote working in writing, a meeting should usually be held to discuss this. The process may also include discussions with a trade union representative where applicable. Similarly, meetings and discussions should be held where an employer has initiated the shift to remote working. An employer should not unilaterally (i.e without the consent of the employee) change the terms of an employee's contract of employment, as this could result in them being in breach of contract.
Care should therefore be taken to follow the ACAS guidance and code of practice in England, Wales and Scotland or the Labour Regulations Agency guidance in Northern Ireland to ensure the process is handled fairly and properly. Whilst discussing and reaching an agreement, both the employee and employer should maintain a relationship of 'mutual trust and confidence' and care should therefore be taken to ensure the amendments to the contract are reflective of this relationship.
It is vital that the agreement must be, as the name suggests, an agreement. Any changes to a contract of employment have to be agreed and should follow the process as outlined above.
Once a fair and proper agreement has been reached between the employer and the employee regarding Remote Work Agreement, this document can be used to contain the new terms concerning the employee's place of work. Thought should be given in particular to the following details which can be included within the document:-
Matters which are not specific to the employee's new remote working pattern, such as their salary and annual leave entitlement, should ordinarily remain the same as per their original contract.
Once the relevant details have been completed, the employer should sign two copies of the document. The two signed copies should then be provided to the employee. The employee should then sign and date their acceptance on the bottom of both copies, retaining one for their records and returning the other to the employer. The employer should then retain the signed copy.
The key piece of law which is relevant to remote working in England, Wales and Scotland is the Employment Rights Act 1996.
The key piece of law which is relevant to remote working in Northern Ireland is the Employment Rights (Northern Ireland) Order 1996
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