Millions of people up and down the country are now working from home as a result of the COVID-19 pandemic. For most, this has been beneficial for businesses, productivity is up and organisations and employees have managed to cut costs.
Lots of businesses are now looking to adopt home working as a more permanent component in their business strategies. However, there are also potential negative aspects to home working including
- motivation and management;
- mental wellbeing of the team;
- loss of interaction and mentoring.
This leads to two questions. What does the law say about some of the key issues seen in remote working? And secondly, what should an employer consider?
As a general rule of thumb, you should always refer to employment contracts when discussing a change in work circumstances. For example, if the employment contract mentions the ‘place of work’ as the offices and makes no reference to home working, this should be changed. If, however, the employment contract leaves this as discretionary, then no change is 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 employer 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.
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 upon between both parties.
Employers should first look at government furlough schemes to assist them before considering pay cuts or redundancies. When approaching employees it needs to 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, as ever, it is paramount that employers are open and constructive in their discussions. Bear in mind that if pay is reduced without the authority to do so, claims for constructive dismissal or discrimination, or breach of contract are likely.
The right to work from home
Most employees have the right to request the option to work from home after 26 weeks’ employment. However, that is at the employer’s discretion in line with the business’s needs. It is the employee’s responsibility to suggest sensible options into how this could work and essentially put a business case forward. 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.
Employees are advised to check their insurance policies and housing contracts to ensure they are allowed to work from home and any devices used at home are also suitably covered. The employer should ensure the employee has a safe and suitable setup for health and safety purposes. If the employer provides equipment for the employee to work at home it must be covered by insurance, governed by the company policies, and requisite maintenance and safety checks be set out. If the employee is using their own device suitable policies and insurance provisions should be covered. Things to consider, in addition to insurance and Health and Safety, would be cyber-security, PAT testing, GDPR and the sharing of data, VPN access, working from overseas provisions, and confidentiality.
Health and Safety
Employers are still responsible for the health and safety of their staff who work from home. 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. They should also have a forum to discuss any concerns.
The health and safety requirements laid out by law, include:
- The Health and Safety at Work Act 1974,
- The Display Screen Equipment Regulations,
- and the Provision and Use of Work Equipment Regulations, also continue to apply.
It is important to note that these duties cannot be delegated to employees.
An employer must carry out a risk assessment based on the employee’s activities. This can be done by the employee, but the employer will bear the ultimate responsibility. This must be a comprehensive risk assessment and, if there are children present, must include them. 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 need to be communicated back to the employer.
Data and Monitoring
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 company devices. This is especially important if employees are handling the data of other people in their job, as the Data Protection Act 2018 has made data processing a robustly regulated activity. Employers will need to have strict data policies and practices in place. Employers should do everything they can to ensure they and their staff are trained and are abiding by these.
Monitoring employees is desired by employers for many reasons. These range 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. Consent for monitoring should be included in their employee contract or the employer’s policies.
An employee may consent, in their contract to be monitored, but inappropriate and disproportionate monitoring and 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).
Staff data clearly needs to be processed for payroll and taxes and this is a legitimate lawful process. However, a contract or policy could go beyond this and confirm processing might be by third parties, such as accountants for example, or diversity is monitored for regulated bodies. Too much data collection though may lead to a breach of data protection regulations so careful consideration should be given to what data, how, and why is processed. 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 employers balance the perceived benefits to the business of monitoring, with the potential impact on their employee’s. Any negative impact here will likely lead to reduced productivity anyway.
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.
In these times, both employees and employers should be flexible and practical in their requests and should maintain an open dialogue. The age of homeworking is upon us, and if implemented correctly, 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. However, with an open dialogue and the willingness to change, home working, be it fully or partially, can be brought to many businesses for the benefit of all. Essentially policies, training, regular check-ins, and governance should enable employees to work safely and productively.
Karen Holden is the Managing Director & Founder of A City Law Firm who practise both commercial law and litigation, having been admitted to the roll in 2005. If you require further advice or assistance, please do not hesitate to contact [email protected]
A City Law Firm Limited is a leading entrepreneurial law firm in the city of London, with a dynamic and diverse team of lawyers. It was awarded most innovative law firm, London 2016 and Business Law firm 2017. They specialise in start-up business law, the tech industry, IP and investment.