In the current climate, employers are developing working arrangements and are being forced to think commercially and creatively to keep their business operating. This has prompted many employers to introduce or expand homeworking arrangements for the foreseeable future.
Homeworking raises a number of legal and practical considerations for employers. In light of the increase in homeworking, we thought it would be helpful to provide a summary of some of the key issues for employers to consider, along with some practical steps.
Contracts of Employment
Most employment contracts will not provide expressly for homeworking unless the employee was hired to be a homeworker from the outset.
Most contracts specify a company office address as the place of work. With this in mind, homeworking is likely to be a temporary variation of employment contracts. Your employment contracts may allow you flexibility around the location of work or to reasonably require the employee to work from other locations.
We’d therefore recommend that employers confirm the homeworking arrangements in writing to employees and obtain agreement from the employees to this temporary working arrangement.
- Write to confirm homeworking arrangements.
- Confirm that homeworking arrangements are ‘temporary’ for the duration of the pandemic. This makes it clear that it is not a permanent variation to contracts of employment and allows employers to revisit this after the pandemic.
- Be clear to employees what homeworking means to the remainder of their contractual terms, such as their working hours, reporting lines and responsibilities.
- Consider whether you may need a contractual right to enter the employee’s property to recover property or perform risk assessments? We’d advise that employers include this right within the contracts of employment for homeworkers or within any variation letters confirming homeworking arrangements.
Confidential Information & Data Protection
Working from home can make confidentiality and data security harder for employers to monitor.
The protection of Company confidential information is made more difficult when information and documents are removed off Company premises. You should consider how you will ensure that information is kept confidential and data is protected whilst employees are working from home. This might include password protecting information, ensuring documents and equipment are kept in locked cupboards and arranging for confidential waste to be securely disposed of.
Working from home also raises significant data protection implications where an employee may be required to process personal data from home on behalf of the employer. Employers will need to take appropriate additional measures against the unlawful processing of personal data, or any loss or destruction of personal data whilst employees are working from home.
- Check your contracts are clear on confidentiality obligations and what is considered to be ‘confidential information’.
- Remind employees of their confidentiality and data protection obligations by;
1) recirculating Confidentiality, IT and Communication and Data Protection policies to employees may be a helpful step; and
2) refreshing data protection training for employees working from home.
- Carry out a data privacy impact assessment of the data protection implications of employees working from home.
- Clarion’s Commercial team and GDPR experts are able to assist you with any specific data protection concerns or queries.
Health & Safety
Even where employees are working from home, employers still have a statutory duty to employees and an obligation to ensure a safe working environment.
Working from home may create additional health and safety considerations and risk for employers, which differ depending on the industry and the nature of the work the employee is required to undertake.
- Keep in touch with home working employees to check they remain healthy and safe.
- Ask employees to conduct basic display screen equipment assessments at home - please click here to view the HSE Display screen equipment (DSE) workstation checklist
- Assess the safety of any equipment provided to the employee to use from home and ensure this is in good working condition.
- Create and circulate an accident reporting procedure for employees to report accidents that occur whilst they are working from home.
- Consider whether any additional risk assessments are required or additional equipment is needed by employees to help them work safely from home, particularly in respect of pregnant or disabled employees (see note below on reasonable adjustments).
Under the Working Time Regulations 1998, employees are required to have regular rest breaks and not exceed working hours of 48 hours each week (unless they have signed a valid opt-out agreement).
Rest breaks and working hours are likely to be much more difficult for employers to monitor when employees are working remotely. Employers should make it clear to employees the working hours they are expected to observe whilst working from home, and the requirement to take regular breaks.
The convenience of working from home along with modern technology make it more likely for employees working remotely to work over and above their contractual hours. Equally, employers may be concerned that without the ability to observe employees, they may take advantage of homeworking and not do any work at all!
Employers should consider monitoring employees working time and work output where this is a concern, and encourage employees to take rest breaks.
- Consider how you will monitor working hours for remote workers.
- Check employees who are likely to work in excess of 48 hours each week have signed a valid opt-out letter.
- Remind employees of the working hours that they are expected to observe whilst working at home and encourage employees to take regular rest breaks.
Employers should be mindful of their obligations towards disabled employees who may require reasonable adjustments whilst working from home. It may be that this is a physical adjustment, such as providing additional desk equipment, or providing emotional and mental support, such as reducing workload or amending responsibilities.
Failure to provide the necessary adjustments and support to disabled employees could give rise to disability discrimination claims.
It is also likely that employees may suffer from mental health difficulties during the current pandemic and these unprecedented circumstances. Remote working can make it more difficult for employers to observe behaviour and support employees who may need it. We’d encourage employers to communicate closely with employees who suffer from mental health conditions, and actively publicise mental health first aiders and support available.
- Encourage line managers to communicate and check in with employees who may need extra support.
- Seek occupational health guidance in respect of adjustments for disabled employees and perform additional risk assessments.
- Remind employees of support available, e.g how to contact mental health first aiders remotely, details of any employee assistance programmes.
- Be clear and communicate your expectations of employees whilst they are working from home. This might be clarifying times they need to be available, how they can be contacted and how they are expected to keep in touch with managers or direct reports.
- Consider whether you will be reimbursing the employee for expenses incurred by working from home, such as phone bills, broadband costs etc. The Government do offer some financial support and tax relief for homeworkers which may be worth exploring to see if they are applicable to you and your workers.
- Check your Company insurance policies cover homeworking employees and Company property kept at employees' homes.
- Encourage employees to check their home-insurance policies to ensure Company property is covered whilst at their home.
- Ensure your employee records of employee’s home addresses and contact details are up to date.
- Consider preparing a specific homeworking policy setting out the key information and expectations for homeworkers and circulating this to employees.
Is homeworking the future?
Hopefully the current pandemic will have some positive influence in how businesses work moving forwards.
In the current circumstances, businesses have been forced to think creatively and implement homeworking arrangements, when they previously may not have considered homeworking to be viable or possible for their workers. Other businesses will have taken steps to improve their facilities to support and assist successful homeworking and enable employees to work more flexibly.
Moving forwards, it is likely to be difficult for employers to refuse homeworking requests in the future, where employees have been successfully working from home for a number of months. Employers will need to be reasonable in how they consider these requests.
It seems likely that, following months of alternative working arrangements during the lockdown period, employers will be forced to revisit the way they work moving forwards and this is likely to include a permanent increase in homeworking. This will hopefully lead to many benefits for businesses, including staff retention, increased productivity and a reduction in overhead costs.
Get in touch
The Clarion Employment team are currently working successfully from home, and are available to assist with any queries you may have on homeworking or preparing home working policies. Please don’t hesitate to contact the team or call us on 0113 246 0622.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.