1. We have two colleagues who have verbal agreements to work from home. They have been doing so for more than 5 years. What protection do they have as this is not included in their contract of employment? Can the employer change this work practice with one month’s notice?

Author: Julie Austin

August 17, 2017

Notwithstanding the fact that only a verbal agreement was reached with these employees, as the employees have enjoyed this arrangement for a significant period of time, the employees’ could reasonably argue that they have an implied right to work at home.  A term can be implied into a written employment contract by virtue of “custom and practice”. One of the factors taken into account when determining whether a custom and practice exists is whether the arrangement existed for a substantial period. The fact that the arrangement has persisted for 5 years may mean that the employees have a contractual right to work from home. Of course the discussions which took place with the employees in question at the time of the arrangement being put in place would need to be considered before a definitive view on this matter could be given. You would need to consider whether the employees were informed at the time that the arrangement was temporary, and, if so, whether a particular period was envisaged and the reason for the request to work from home in the first place.

Generally speaking, changes cannot be made as a matter of law to terms and condition of employment without consent. Most employment contracts contain a “Variation Clause” or “Mobility Clause” which, if drafted correctly, may allow amendments to be made to the contract without the employees’ consent. However, these clauses are limited in that they will only allow the employer to make reasonable changes to non-material terms and conditions of employment. An employer must also act reasonably in relation to any changes in accordance with the duty of trust and confidence which is owed by employers to employees. This duty will generally mean that an employer will need to act reasonably by consulting and engaging with staff in relation to any material changes even if a clear variation/mobility clause exists.  If an employer fails to engage or consult, an employee could resign and claim constructive dismissal. The claim would be that the organisation acted unreasonably and/or that the organisation breached their contracts of employment by amending their terms without consent. The Workplace Relations Commission (the “WRC”) can award up to 2 years’ remuneration for constructive dismissal. However, the award would be based on financial loss and is subject to the employee’s duty to mitigate this loss by finding alternative employment. In deciding on these claims, the WRC will usually examine the extent to which the employer acted reasonably by engaging and/or consulting with staff and whether the employees’ consent was unreasonably withheld.

Work practices, as opposed to terms and conditions, can generally be altered without an employee’s consent. Work practices might include for example times for taking breaks or ways of performing work. However, there is often a fine line between what constitutes a work practice versus a condition of employment. An arrangement to work from home will, more often than not, constitute a term or condition of employment rather than a work practice although that of course would need to be determined on a case by case basis. Furthermore, in practise, whether or not an employee benefit constitutes a term or condition or employment or a work practice may be somewhat academic if changing is likely to give rise to industrial relations or HR issues in which case employers may be required for practical reasons to obtain the consent of the employees concerned.

For the reasons set out above, it would be prudent for the organisation to engage and consult with the two employees concerned before imposing any change unilaterally. Going forward, if any other employees look to work from home, a written agreement should be put in place which makes it clear that the arrangement is temporary and may be changed at the discretion of the employer on one months’ notice.

This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie

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