Employment law considerations for homeworking – what do you need to know?

5th June 2020

Watch our video nugget on this topic here.

In the wake of the Coronavirus pandemic, employers are now having to consider a wide-range of alternative working arrangements and think more creatively about how their businesses operate. Whilst a full scale return to work will be on the cards at some point in the future, a return to work environments as they were previously known is unlikely to be possible at this stage. In practical terms, employers have been forced to consider how measures can be implemented to reduce the risk of infection in the work-place meaning that, on any given day, a large proportion of their workforce may be working from home. In this piece, we consider issues of:  homeworking requests; health and safety (and equipment); data protection; insurance; expenses, flexible working; and some thoughts on the future of homeworking.

Employers who have invested considerable time and finances into facilitating homeworking during the lockdown in line with Government advice could see this as a positive opportunity, and are now waking up to the benefits of capitalising on this investment on a longer term basis. Such benefits range from the prospect of smaller office spaces and therefore lower rents, to having a more flexible workforce that is available to service the needs of customers and clients outside of standard office hours. Similarly, employees who have become used to working from home and escaping their daily commute may be keen to hold on to some element of homeworking, even if only for part of the week.

Clearly, there is no quick fix to ensuring that all employees are safely back in the workplace in the immediate future and so employers will need to comply with the law surrounding homeworking as well as their duties to employees who are working from home. The fact that the majority of current homeworking arrangements were implemented at a time of crisis means that there was simply not enough time to formalise these temporary arrangements in line with the relevant legal framework. As employers move into the next phase of homeworking on a more long-term basis, now is therefore the ideal time to ensure they have their houses in order.

Homeworking requests

The first sensible step for employers to take is to create a homeworking policy. Such a policy allows homeworking requests to be refused, accepted or managed through a comprehensive process so that both employees and employers have clear expectations about how things will work.  Having a policy will also ensure that requests are dealt with in a consistent and non-discriminatory manner across the workforce irrespective of the reasons for the request.  It is advisable to obtain legal advice before drafting such a policy to ensure it is sufficiently comprehensive, and the Walker Morris employment team can help with this. Any such policy should include:

• The process for making the request to work from home, the criteria the employer will apply when deciding the application and the process for dealing with it (and how this interlinks with any flexible working policy);
• Whether a successful application will be subject to a trial period and any other conditions that will apply;
• Who will be responsible for the provision of equipment;
• Rules around storing information and data protection;
• Both the employer and employee’s duties in terms of ensuring health and safety, data protection and confidentiality obligations are complied with;
• Rules around expenses;
• How the employee will be expected to keep in touch with colleagues in the office; and
• How the employee’s performance will be managed.

Employers should seek to be practical, flexible and sensitive to the employee’s situation when considering whether they can work from home on a long or short-term basis. When considering any requests, employers should talk to their employees about their home working environments, balancing both business requirements as well as the employee’s needs, for example childcare responsibilities, long-term health conditions or disabilities. It is sensible to document these discussions as well as any changes to the employee’s terms and conditions of employment so that it is clear what has been agreed since any change to an employee’s place of work is likely to be a contractual amendment.

Health, Safety and Equipment

Employers owe a duty of care to their staff, and this includes ensuring the health, safety and welfare of those who are working from home. A risk assessment should be carried out at the outset of the homeworking arrangement, and periodically thereafter. This assessment should pay particular attention to the employee’s equipment, electricity, first aid, accidents and work-related stress caused by the employee living and working in the same environment.

That said, in light of current circumstances, it is highly unlikely that employers can carry out usual health and safety risk assessments at an employee’s home. However, employers still have duties to ensure that if changes are required to an employee’s work environment, these are implemented. This can include taking simple steps such as employers checking with their employees that their work can be done safely from home, that they have the requisite equipment and that any reasonable adjustments that are required are made for any employee with a disability. In addition, and as a matter of good practice, during both during current ad-hoc homeworking arrangements and more permanent homeworking arrangements, employers should keep in regular contact with their employees and set out agreed weekly meetings or calls so that concerns can be raised and employees are not left feeling isolated.

Measures should also be in place to monitor the working time of homeworkers who have not opted out of the 48 hour working week under the Working Time Regulations 1998, bearing in mind that where an employee’s normal place of work is their home and they travel to the employer’s premises or to see clients or customers, that could count towards their “working time”. Monitoring the work levels and working time of all staff (including those who have opted out of the 48 hour limit) is likely to be a helpful step towards compliance with general health and safety obligations.

Although there is no general legal obligation on employers to provide the equipment required for homeworking, in cases of disability it may well be a reasonable adjustment under equality legislation to do so. Realistically, most employers will want homeworkers to use only company computer equipment to ensure compatibility of systems, maintenance of virus protection and other security measures. Employers are responsible for the equipment and technology they give their employees so that they can work from home. Staff should be made aware that the equipment should only be used for the purposes for which the employer has provided it, and that the use of such equipment is covered by the employer’s normal policies and procedures relating to company equipment.

Data protection

In the same way that employees in the workplace are subject to confidentiality provisions regarding information relating to clients, customers, suppliers and other staff of their employer, such confidentiality provisions continue to apply where employees work from home. In practice, the risks may be heightened in a homeworking arrangement where the employer is not able to implement basic measures to protect confidential information, such as secure filing cabinets or shredding facilities to ensure that confidential papers are properly disposed of. Additionally, whereas an employer has overall control over the security of their premises and who can gain entry and may therefore potentially access confidential information, they have no such control over a worker’s home environment.

In light of these challenges, it is important that employers continue to comply with their data protection obligations where their employees are working from home. Employers may therefore need to rethink their current policies and procedures and adapt these to ensure they are compliant with data protection law in light of specific issues that may arise in a homeworking arrangement. A more detailed note about the challenges of protecting data when working from home by our Regulatory colleagues can be found here.

Expenses

Employers should consider their current expenses policy and whether any adaptations are required to allow for expenses which may be reasonably incurred when working from home. For example, will homeworking employees be entitled to recover expenses for travel to the office or a contribution towards telephone, internet, heating, electricity, stationery and photocopying costs? For employees, tax relief may be available in relation to some of the bills they incur as a result of regular homeworking.

Insurance

Employers must have employer’s liability insurance to cover their legal liability for personal injury to employees whilst acting in the course of their employment. Where employees work from home, such insurance will need to extend to cover these circumstances. Employers should therefore check their policies to understand whether their insurance covers working from home and consider whether they need to take out further policies.

Flexible working practices

Employees who have worked for their employer for 26 weeks or more are entitled to make a flexible working request, which can include a request to work from home, which employers have a duty to consider. Where employees have been working from home for the lockdown period, they may have been able to demonstrate how such a change to their working practice has had little to no impact on productivity, and in some cases may be able to demonstrate an increase in productivity. Employers will therefore need to give cogent and logical reasons supported by clear evidence as to why they cannot support a request for longer term homeworking in order to avoid any disputes arising.

Concerns about the workplace

Where employees request homeworking due to a fear of contracting the Coronavirus in the workplace, employers should consider whether such workers can work from home (particularly if they are in the vulnerable categories). If this is not possible, the employer could offer that the employee takes time off as holiday or unpaid leave. If an individual refuses to attend work without a valid reason and cannot reasonably work from home, employers may wish to go down the route of disciplinary action, but it is essential to consider s. 44 and s. 100 of the Employment Rights Act and whether it would amount to an automatically unfair dismissal where an employee has raised concerns about a ‘serious and imminent danger’ to their health and was later dismissed. Legal advice should always be taken before commencing disciplinary action in these circumstances.

The future of homeworking

As we come out of lockdown many employers will have to deal with a new type of normality in which homeworking is more prevalent. The competition for talent is likely to be as ferocious as ever, and businesses will have to embrace these changes if they want to retain their competitive edge. As such, now is a sensible time to start thinking more carefully about the implications of homeworking and any policies that need to be put in place or amended to reflect the practice.

Please feel free to contact a member of our employment team below or your usual Walker Morris contact should you have any queries regarding formalising existing homeworking arrangements, or dealing with new homeworking requests. We can help do a “health check” of your existing policies, or prepare new policies which address the specific challenges posed by homeworking.

Visit our Future World of Work hub here.