Due to the Covid-19 pandemic employers have had to embrace agile working and a new normal that comes with asking employees to work from home in order to keep them and others safe. Some employees will have already been set up to work from home and their roles will allow for this easily, and others will have had to significantly adapt as a result of Covid-19. Whatever the role that is to be performed, below is some general guidance from our employment law team you should consider, as an employer, when your employees are working from home.
- Practical considerations when your team is working from home
- Advantages of your employees working from home
- Disadvantages of employees working from home
- What are the contractual considerations when employees work from home?
- How do you appraise performance of a homeworker?
- What are the data protection considerations?
- What are the health and safety considerations?
- How to deal with equipment requests
- What are the insurance considerations?
Practical considerations when your team is working from home
You will need to consider what should physically be in place whether in terms of documentation, equipment or processes before an employee is able to work from home. For example, an employee’s employment contract may not allow for home working, and so you may need agreement in writing from your employee that they accept this change, or you will need to give notice of the change and unilaterally impose it and record in writing when the change has been made.
Unilaterally imposing clauses into employment contracts can sometimes come with some legal risk, but in the current environment, at least a temporary change to an employment contract for this purpose is unlikely to represent much of a legal risk as it is in line with government public health guidance. If you are unsure about making changes to an employee’s terms and conditions, please contact our specialist employment solicitors.
Health and safety
Once an employee is technically allowed under their contract of employment to work from home it then must be assessed whether they are safe to work from home. As an employer, you are still responsible for an employee’s health and safety if they work from home and so a health and safety risk assessment may need to be carried out.
Again, during the middle of a pandemic it is unlikely to be appropriate to attend all employees’ homes to carry this out, but a video conference or other call to ask questions about the working environment at home and possible required adaptations to make this safe, might be prudent.
An employer will also need to ensure that employees have what they require to be able to work effectively from home. This may mean that specialist equipment or other home office equipment is provided.
It is recommended that regular communication is established to ensure that employees have all of the equipment they need to work as effectively as they can and so that supervision, mentoring and training of more junior staff can be effective and not leave employees with little to do or not knowing how to carry out work, and not potentially leaving your business open to delays and/or unhappy customers.
Where teamworking is essential, it is critical to get a platform to communicate that everyone is able to use from home. This is not only to complete work-related tasks, but to keep people mindful that they are part of a team and others are reliant upon them and they can rely on others in the team. This can be used to incentivise working together and helping to prevent isolation whilst working home alone, which is a position many employees may not have chosen and are new to.
Data which would usually be well protected in an office environment, may require new processes or software to be put in place to protect, for example, data covered under the GDPR.
You will also need to establish whether any additional planning or insurance arrangements are required and look at what the tax consequences of homeworking might be.
Advantages of your employees working from home
Provided that you have carefully considered homeworking and put the correct arrangements and processes in place there are potential benefits to be had by employees working from home.
Reduced office expenses
There will be lower office expenses if an office is not required or smaller or temporary offices can be rented as and when needed.
Managing work/life balance
Also, travel time can be spent working and making a useful contribution to your business and having more control over working times can assist with employees managing their work/life balance and can mean they can manage a school run and still contribute as much to your business without the stress of a commute, which can motivate employees to work harder.
Retain and recruit talent from further afield
Offering homeworking as an option can mean that you can recruit or retain employees from a different geographical region if the employee or the office is relocated. Employees who may need more flexibility due to caring responsibilitiesor temporary or permanent disability may be able to work or continue to work for you if you are able to offer temporary or permanent homeworking, as with the right technology and systems in place, teamworking will still be possible.
Disaster management planning
Thinking about and being set up so that your employees are able to work from home is a useful part of disaster management planning as it can reduce your business’ vulnerability to disruptions outside of your control like transport problems, adverse weather conditions, terrorist threats and pandemic.
Disadvantages of employees working from home
On the other hand, there are potential disadvantages to homeworking, which you will seek to try and avoid.
Loss of visibility
Top of the list of concerns for employers about homeworking is usually the loss of control over employees, whether this is in terms of the security of data or confidential information employees are using, managing and supervising employees or trusting employees to work productively when not being present at work.
Equipment expenses and data security concerns
You may also be concerned that your business may become overly dependent on technology, which could also be problematic if that fails, potentially leading to data security breaches or if one or more employees cannot get the technology to work for some reason. Employers will also need to ensure that employees have the correct equipment and training and can work safely at home, which will likely lead to extra costs and will probably mean duplication of equipment.
Managing your team’s well-being
Whilst some homeworkers find it easier to gain a work/life balance, others may become lonely and isolated and suffer from mental health issues by not having a close-knit team nearby and may miss workplace facilities.
Far from the perception of some employers that employees are likely to become distracted and work less from home, there is evidence to suggest that in reality employees are likely to work more if work is at home as there is less separation between home and work. This could cause employees to become stressed and overworkedand so as an employer responsible for an employee’s health and safety, this will be more difficult to assess if they are working remotely.
What are the contractual considerations when employees work from home?
It may be that an employee’s contract of employment does not allow for homeworking and that sections of the contract need to be changed.
You will have to look at remuneration and ensure that homeworkers are given comparable pay and benefits to those performing a similar role in the office, if there are comparators, to ensure you are not leaving your business vulnerable to potential discrimination claims.
Clarifying your expenses policy
You should also be clear about what expenseswill be paid by the employer whilst the employee works from home. Homeworking expenses should usually include equipment, services or supplies needed to work from home like internet a computer, office furniture or stationery, as well as reasonable household expenses such as for additional gas or electricity used whilst working from home.
Principal place of work
Your employees’ employment contracts are required to specify the employee's principal place of work and if there is any flexibility for other places of work. If an employee’s principal place of work is to become their home address, you are likely to want to be able to require that employee to attend the office on occasion, for example, for training or team meetings, this should be made clear in writing in the employment contract.
Working hours will also need to be made clear in an employee’s contract of employment. Specific or core hours should be stated when the employee must work and the level of flexibility within any working hours should also be set out in writing and be clear to both parties. As no one will oversee whether homeworkers take their breaks, the contract should make it clear that homeworkers are responsible for regulating their own working time and taking breaks as appropriate and in accordance with the Working Time Regulations.
Sick pay and holiday
Homeworkers should also have the same entitlement to sick pay and leave as if they worked in the office, provided that they comply with your business’ sickness policy and a homeworker is entitled to the same amount of holidayas comparable office-based workers. This is 5.6 weeks' paid leave if they work full time hours, which is pro-rated if they work part time.
Whilst there is an implied confidentiality clause in every contract of employment, it is recommended that for homeworkers you include an express confidentiality clause in a homeworker's contract, making clear what information is confidential and how it should be secured.
A clearly and precisely written IT and communications policy can assist in setting out expectations and systems in place to deal with the use of IT at home as well as confidential information and storing this safely. If you would like one of our expert employment solicitors to draft or review your IT policies, please contact us.
Grievance and disciplinary procedures
A homeworking employee will need to abide by the same grievance and disciplinary procedures as office workers, but you may want to add specific and separate provisions relating to homeworkers, making clear that disciplinary action can potentially be taken against homeworkers if they use work time for domestic, family or other commitments.
Homeworking requests: considerations for now and in the future
A trial period for homeworking might be a good idea where both parties or one of the parties are unsure whether it will work in practice, and can assist employers in discrimination cases to at least make clear that they gave this option a go and did not dismiss it out of hand.
If a request for homeworking is made under a formal flexible working request, flexible working legislation does not provide for trial periods, but both parties could still agree to this. If you require assistance with a flexible working request, please contact our employment solicitors for specialist advice.
If homeworking is likely to be a temporary measure you should seek to make clear in writing from the start that you have a right to revertto office working. This might be useful if a trial period of homeworking is unsuccessful, where homeworking was to overcome a temporary hurdle (such as the COVID-19 pandemic), or if changes have been made to the operation of the business which now makes homeworking less effective or not feasible at all.
Even with this contractual right though, you will need to be cautious as there is still some legal risk relating to discrimination claims and there will need to be an objective reason as to why you would exercise this type of clause.
How do you appraise performance of a homeworker?
Homeworkers, like any other workers will also need to have their work appraised, this will just need to be done a little differently. Appraisals are used to reward performance and motivate workers by looking at what training and development needs they have and setting performance targets. Where a worker is in the office everyday informal appraisals can be provided by giving feedback on work in real time and allowing undesirable performance to be dealt with quickly and face to face. Formal appraisals are less regular and may happen six monthly or annually.
Homeworkers will require a different matrix for performance and a different method of being appraised, which it is helpful to discuss and agree in writing before homeworking begins. It should be made clear how work progress, involvement in projects, performance and expectations of both parties will be dealt with. It is likely that informal appraisals will happen remotely with the use of video conferencing as well as email and by telephone on an ongoing basis and formal appraisals may still be able to be held infrequently, in person.
Homeworkers should not be denied promotional prospects open to comparable workers merely because they work at home all or part of the time. There may be good reasons why such workers cannot be promoted to a particular position, but employers will have to show that a decision can be objectively justified if, for example, a discrimination claim is brought.
What are the data protection considerations?
Under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018) you will need to take appropriate technical and organisational measures against unauthorised or unlawful processing of data that identifies individuals and against accidental loss or destruction of, or damage to, personal data. To ensure that your business is complying you will need to give specific training to homeworkers on their obligations and the procedures which they must follow.
Before allowing a homeworker to have access to data covered under the GDPR, you should carry out a data privacy impact assessment of the data protection implications of employees working from home.
You will need to ask questions about who will have access to the employee’s computer and the data stored on it and security of the computer when it is left alone. You will need to consider what measures will need to be taken against accidental loss, destruction, or damage of data. It is important to know whether equipment is password protected and passwords frequently changed and that there is safe transit physically and electronically of data between home and office and wherever else it may be required to be sent.
If there are paper files, it is critical to look at how securely they are stored and how they will be safely be disposed of when the data should no longer be stored. If you do not have evidence that you have made best efforts to protect data and put systems in place to keep it safe you could be heavily fined by the Information Commissioner’s Office and so if you have any questions about data protection, you should seek specific advice from an expert. Our Data Protection solicitors can help.
What are the health and safety considerations?
Even for homeworkers, employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, to identify hazards and assess risk.
For homeworkers in particular, stress, isolation and loneliness may be issues that employers will want to address. Ensuring that the team remain in close contact together even if they are not physically in the same workplace, and putting measures in place to ensure this, is important.
As discussed above, a risk assessment in person, or if this is not possible by way of video conferencing to see the lay out of the home work space and assess hazards and fully discuss any issues the employee may have, is critical.
An employer is responsible for the equipment it supplies to homeworkers, but workers are responsible for their domestic supply, including electrical sockets and employers should make employees aware of this to ensure that nothing is missed when making the home work space safe. This includes the employer’s obligation to provide appropriate first aid kit and supplies - depending on their role, this can be basic. If a homeworker already has a basic first aid kit and this is all that is required, an employer could simply reimburse them or top up their supplies. If an employee does have an accident whilst working (even if this is at home) you should have a clear policy and reporting procedure in place for homeworkers, as all such accidents need to be reported to the employer.
Employers are not only obliged to provide employees with the correct equipment for them to carry out their work when they are working from home, but they must also ensure that equipment is safe, well maintained and inspected regularly so that it is in good working order. Employers must also ensure suitable and sufficient lighting is provided in the workspace, which may just mean buying an extra lamp or replacement higher voltage light bulbs in the case of home workers, upon carrying out a risk assessment.
How to deal with equipment requests
Whilst there is no legal obligation on an employer to provide equipment to enable homeworking, aside for in certain circumstances such as if a homeworker has a disability and the provision of or reimbursement for equipment may be required as a reasonable adjustment, employer’s may wish to provide equipment.
If employees use their own equipment, they may want you to agree that as their employer you will pay the cost of maintenance, repair and fair wear and tear on their equipment. If you agree to this, you are advised to ensure that the employee agrees in writing that they shall maintain the equipment properly, enter into any appropriate service contracts and replace it when necessary.
There are many reasons why employers will look past the initial costs of providing equipment to employees and will want to supply this. For example, you can ensure that your computer equipment and software is compatible if you supply it and you can install the proper virus protection, specialist software and ensure security measures are in place.
If homeworking is more than minimal, a dedicated telephone line and broadband/high speed internet access, a high-speed printer and, ideally, a shredder may also be supplied and agreement should be made with the employee that these are for business use only and may not be used by anyone other than the employee.
If there are structural changes to the house required, or if the employee’s house is used for wider business purposes requiring business visitors, planning permission may be required. Unless agreed specifically in the employee’s terms and conditions of employment there would not generally be an obligation on the employer to fund this and in the vast majority of homeworking cases, planning permission would not be necessary.
What are the insurance considerations?
You will need to ensure that any equipment used for the employee’s work at home is covered by appropriate insurance. Employers should first try and cover the equipment under their insurance policy. If this is not a possibility, you should ask your employee to make arrangements to insure the equipment and provide evidence that they have done this, and if required reimburse them for any additional costs in doing so.