By Karen Holden, CEO, A City Law Firm
Thousands of organisations up and down the country have now adopted hybrid or flexible working policies as a result of the COVID-19 pandemic. For most, this has seen an immediate benefit for businesses – productivity is up, and both organisations and employees have managed to cut costs regarding office space and travel costs.
Many businesses are now looking to adopt a longer-term plan around remote staff and include flexible working as more permanent component in their business strategies – it is very possible that a hybrid of both home and office working will become the new norm going forward.
This new landscape of work has raised many questions on how businesses can manage a hybrid workforce from a practical stand point and the legal issues that need to be considered. Firstly, what does the law say about some of the key issues seen in remote and flexible working? Secondly, what practical and human resource issues should an employer consider?
Employers should always refer to employment contracts when discussing a change in work circumstances with their employees. For example, if the employment contract mentions the ‘place of work’ as the office and makes no reference to home working, this should be changed. If, however, the employment contract leaves this as discretionary, then there may be no need to implement changes.
The pandemic has presented unforeseen circumstances in which home working was a necessity, regardless of what was contained in policies or employment contracts. In these circumstances, a variation or side letter should be sufficient and/or tied into a working from home policy to cover both employer and employees. Remember, variations to employment contracts, should always be in writing and agreed by both parties.
If an employee is not agreeable to a unilateral change, careful consideration must be given to how the employer approaches this. Not every employee will want to work at home .
Updated policies that are referenced in the amended employment contracts should be easily accessible by employees so that they can be incorporated as binding in the contracts. They must apply to all staff in a non-discriminatory manner and, like the contract, be brought up to date.
Reductions in pay
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. However, if it is not in the contact, it must be agreed between both parties. Consideration to minimum wages, treating staff in a non-discriminatory manner and making sure a fair procedure is followed is something everyone must be aware of.
It is paramount that employers are open and engage in consultations with their employees. If pay is reduced without the authority to do so, this could leave employers open to costly claims for constructive dismissal, discrimination or breach of contract being brought against them in the employment tribunal. It may also reduce productivity or result in resignations causing practical operational issues.
The right to work from home
Most employees have the right to request the option to work from home after 26 weeks’ employment. However, this is at the employer’s discretion in line with the business’s needs. It is the employee’s responsibility to suggest sensible options 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. Recent case law suggests that the tribunal are scrutinising employers to a great level now if these requests are rejected. Therefore, even more so than ever, due consideration; documented reasoning and a non-discriminatory approach is vital.
Both employers and employees are advised to check their insurance policies to ensure they are allowed to work from home and any devices or equipment used at home are also suitably covered. This should be reviewed alongside firewalls and cyber security policies, equipment, and insurance. If you are a remote working employee, it is important to check you are fully covered by your home insurance – especially as some policies exclude all items used for “business or professional purposes”. Depending on the profession or trade you are in, you may also need extra cover, such as a business insurance policy or a public liability policy. Home contents insurance generally covers possessions such as your furniture, clothes, and electrical appliances against theft and damage. But not all policies cover everything you need to work from home, so for items such as laptops or monitors, it is worth contacting your insurer to ensure these are added to your policy.
If employees are using items they would not usually use at home, it is recommended that electric appliances are subject to ‘portable appliance testing (PAT)’. This involves the examination of electrical appliances and equipment to ensure they are safe to use. Most electrical safety defects can be found by visual examination, but some types of defects can only be found by testing.
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 and perhaps working longer hours. We recommend regular checks are made to ensure employees are healthy and active. They should also have a forum to discuss any concerns and a line manager or HR contact to liaise with.
The key legislation detailing health and safety requirements at work are:
- The Health and Safety at Work Act 1974;
- The Display Screen Equipment Regulations; and
- The Provision and Use of Work Equipment Regulations.
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. Again, policies and documentation that demonstrate how the employer has approached this is recommended.
Mental wellness is a real consideration at present for those at home. Check-in days; mentoring or training; management initiatives might have changed but are still important so provisions on how to supervise and train must be implemented.
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, mobile phone, or other 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 in place. Employers should ensure training is available to all employees, and that policies are easily accessible. In turn, employees should do everything they can to ensure they are trained and are abiding by such policies. Engaging staff on understanding and reporting breaches is essential for the stability of the business.
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 employment contracts or in the employer’s policies.
There is currently no statutory right to privacy, but 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). As the ECHR is not an EU institution and has 47 members to the EU’s 27 members including countries such as Norway, Switzerland and Iceland, Brexit will not affect the courts competency to hear such claims from workers across the United Kingdom. Too much data collection by an employer may also lead to a breach of data protection regulations. The ensuing breakdown in relationships may open employers up to constructive dismissal claims.
Employers will need to have suitable policies in place and must inform their employees of all monitoring that is going on and what days is being collected, why and how long it’s retained. It is also advised that employers balance the perceived benefits to the business of monitoring, with the potential impact on their employees, as any negative impact will likely lead to reduced productivity.
There are no specific legal requirements relating to the provision of equipment to a home working employee. It is, however, strongly recommended for an employer to provide relevant equipment to their staff to assist with meeting data protection requirements and with efficiency.
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 remains with 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.
Also, it is good to note that 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.
As employers adopt hybrid arrangements going forward, 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 but with open dialogue and willingness to change, flexible home working can be implemented by many businesses for the benefit of all. Essentially policies, training, regular check-ins, and governance should enable employees to work safely and productively.
I strongly advise employers to seek professional advice in re-drafting their contracts and policies as well as reviewing insurance policies. Engaging employees is very important as is documenting the processes and decisions they make. It should be a collaborative approach to avoid any fair dismissal claims and discrimination but likewise to improve productivity, engagement and commitment to both parties.