The pandemic has forced businesses up and down the country to adapt entire workforces to work from home. For many, this has proven to be beneficial. Remote working can be cost effective and has even shown to improve productivity by 13%.
Lots of businesses are looking to adopt home working beyond the pandemic with new studies showing remote working is here to stay.
Despite the many positives there are also negatives to this such as motivation and management; mental wellbeing of the team; loss of interaction and mentoring. When it comes to these various aspects what is legally expected of an employer when working remotely and what should be considered?
Up-to-date employment contracts
Employment contracts should always be referred to when discussing a change in work circumstances. For instance, if an employment contract mentions the ‘place of work’ as the offices and makes no reference to home working, this needs to be updated. However, if the contract leaves this as discretionary, then no changes are needed. If it is not open in the contract to permit homeworking, a variation or side letter should be sufficient and/or tied into a working home policy to cover both the employee and employer.
Remember, when changing an employment contract, it should be done in writing; agreed by both parties and all policies should be accessible by employees, and if not already done so company policies should be incorporated as binding in the contracts.
Furlough and pay cuts
Some employers may wish to cut the pay of their employees if they are working from home. If the employment contract allows this, then it is up to the employer how they wish to implement this. If it is not in the contract (which would be out of the ordinary) then it must be agreed between both parties.
Employers should first look at government furlough schemes to assist them before considering pay cuts or redundancies. When approaching employees, they must ensure those selected are done so free from discrimination. Furlough can enable employers to bring staff back on a part-time basis only too by assisting in the payment element for the days not worked.
Whatever the decision, it is paramount that employers are open and constructive in their discussions. It’s important to be mindful that if pay is reduced without the authority to do so, claims for constructive dismissal, discrimination or breach of contract are likely.
Work from home requests
Most employees have the right to request the option to work from home after 26 weeks of employment, but it’s at the employer’s discretion in line with the business’s needs. It is the employee’s responsibility to put a business case forward suggesting sensible options into how this could work. The employer is under a legal duty to have a meeting with the employee to consider the request (within 28 days of the request). They must consider it reasonably and make their decision within 14 days of the meeting.
Health and safety at home
Employers are still responsible for the health and safety of their staff who work from home. The health and safety requirements laid out by law, including the Health and Safety at Work Act 1974, the Display Screen Equipment Regulations, and the Provision and Use of Work Equipment Regulations continue to apply. It is important to note that these duties cannot be delegated to employees. This also includes mental health, which can be strained whilst remote working. We recommend regular checks are made to ensure employees are healthy and active and that they also have a forum to discuss any concerns.
Comprehensive risk assessments must be carried out based on employee’s activities (If there are children present this must also include them). The assessment can be done by the employee, but the employer will bear the ultimate responsibility. Employees are also under an obligation to take reasonable care of their own health and safety and that of others around them. This can include neighbours and visitors too. Any issues found need to be flagged and communicated back to the employer.
Confidential data
The employer is responsible for all personal and confidential data that may be kept or processed at their employee’s home, including on their computer/phone or the company devices. This is especially important if employees are handling the data of other people in their job. The Data Protection Act 2018 has made data processing a robustly regulated activity. Employees will need to have strict data policies and practices in place and should do everything they can to ensure they are trained and are abiding by this.
Monitoring
Monitoring employees can be desired by employers for many reasons, ranging from ensuring they are working enough, to ensuring they are taking enough breaks. Some employers have designed apps to this effect. Whatever the reason, monitoring must be proportionate and reasonable, this should also be consented to in their contract or the employer’s policies.
Although, there is no statutory right to privacy, this is not an open invitation for inappropriate and disproportionate monitoring. Anything that falls beyond this can lead to claims being brought under Article 8 of the European Convention on Human Rights and under the Human Rights Act 1998 (the right to privacy in your private and family life). Too much data collection may also lead to a breach of data protection regulations and the ensuing breakdown in relationships may open employers up to contrastive dismissal claims.
Employers will need to have suitable policies in place and must inform their employees of any and all monitoring that is going on. It is also advised that employees balance the perceived benefits to the business of monitoring, with the potential impact on their employee’s, as any negative impact here will likely lead to reduced productivity anyway.
Home equipment
There are no specific legal requirements relating to the provision of equipment to a home working employee. It is, however, customary and strongly recommended for an employer to provide relevant equipment to their staff both for Data Protection and efficiency. Both employers and employees will need to review their insurance policies to ensure that any work equipment is covered.
Disabled employees may be legally entitled to auxiliary aids under the Equality Act 2020. Under this act, it is the employer’s responsibility to source and pay for such aids.
HMRC has recently updated their tax rules for employers who cover the expense of homeworking equipment. Detailed guidance is available on their website and is an essential read for employers. In brief, there is no income tax or NICs payable where an employer has provided office equipment for employees working from home under a formal homeworking arrangement. This is subject to conditions such as, the property remaining the employers and there being no significant private use of the equipment. It is worth noting that some HMRC assistance is given for the expenses of homeworkers for utilities.
Be flexible
In these times both employees and employers should be flexible and practical in their requests whilst maintaining an open dialogue. The age of homeworking is upon us, and if implemented correctly, it can be a wonderful addition to any business. It is important that both the ‘old and new schools of thought’ remain open and susceptible to the views of others. There is no perfect solution but being willing to change means home working, be it fully or partially, can be brought to many businesses for the benefit of all. Essential policies, training, regular check-ins and governance should enable employees to work safely and productively.
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