Is smart working always that smart?

29 October, 2018
by: Cripps Pemberton Greenish

Cathy Yeulet ©

Boundaries between work and home-life are consistently blurred by so-called smart working, an approach to organising work that encourages flexibility and autonomy predominantly through the use of new technologies to drive greater efficiency in achieving job outcomes.

For example, a recent study by the University of the West of England reported that 54% of rail passengers on routes into London used the trains’ wi-fi to send work emails on their daily commute.

So what implications could smart working have for employers?

Working time

Time spent commuting is not usually viewed as working time for the purposes of the Working Time Regulations (WTR) since the employer has no control over where their employee lives or how they commute to work. The employee is not considered to be at the employer’s disposal until they arrive at their workplace. If the employee chooses to use their journey for work activities, this is broadly viewed as voluntary overtime and does not count as “working time” under the WTR.

There are predictions of test cases which would argue that requirements on employees to deal with work emails outside office hours infringe their rights under the WTR regarding working time and uninterrupted rest breaks.

Culture and well-being

Organisations should consider whether their approaches to accessibility and out of hours working might foster an environment in which employees feel unable to switch off thus negatively impacting on their well-being and engagement.

According to research by the CIPD, views of employees are divided as to whether smart working empowers them by supporting flexible working and enhancing productivity or has negative effects such as disrupting leisure time and increasing anxiety.

In France a “right to disconnect” law was introduced in January 2017, which requires companies to draw up a good conduct charter enabling employees to switch off when off-duty or on annual leave. The objective of this legislation is to ensure compliance with rest-times and holidays and respect the employee’s personal life. Some companies in this country are already implementing similar protocols.

Confidentiality and data security

Any work activity which the employee carries out while using public transport could have serious implications for the employer’s data security and GDPR compliance or could allow the inadvertent disclosure of confidential information. Even if the employee’s device has appropriate security installed, there are obvious risks where a fellow passenger can read whatever the employee is reading or typing.

Employers should have clear policies in place such as “bring your own device to work” and “data protection” policies and ensure that employees are fully aware of their obligations when smart working. Any breaches of such policies should be taken seriously and any data breaches reported to the ICO where appropriate.

For more information on the implications of smart working for employers, please contact Camilla Beamish at or on +44 (0)1892 506128

For updates from us and the latest Tech news follow us on Twitter @CrippsTechLaw