Are your employees going back to the office? Home working considerations for employers

Many employees have been working primarily from home since last March.  Currently, people who can work from home are still advised to do so.  However, that is likely to change in June when the government hopes to end all social distancing restrictions.

The changes to working practices during the pandemic has led many employers to question whether they should insist on employees returning to the office  The BBC have recently reported that almost all of 50 of the UK’s biggest employers questioned by the BBC have said they do not plan to bring staff back to the office full-time.  Many employers have been pleased to note that concerns regarding productivity at home were unfounded and have seen an increase in overall productivity during periods of homeworking.

Additionally, many employees will not want to return to the office full time, especially those facing long commutes.  Our experience in recent months is that many businesses are receiving flexible working requests for employees to continue working from home for at least some of the working week.

Businesses that are considering a continuation of home working arrangements once restrictions lift or that are facing requests from employees to continue with home working arrangements, will need to carefully consider issues arising out of more permanent home working arrangements.

Taylor Walton’s employment law team is able to assist employers in considering the issues relating to homeworking including:

1. Responding appropriately to requests for flexible working.

A request for homeworking is likely to amount to a flexible working request for employment law purposes.  Flexible working can be requested by any employee with at least 26 weeks of continuous employment. Employers should carefully consider the request, meet with the employee to understand their reasons, and provide an outcome within 12 weeks.

Employers can only refuse a request for flexible working for one or more of the reasons set out in the legislation:

  • additional costs will impact the business;
  • it will make it hard to meet customer demand;
  • the inability to reorganise work among colleagues;
  • the inability to recruit new staff;
  • the change will reduce quality;
  • the change will reduce performance;
  • lower demand when the employee wants to work; and/or
  • planned changes to the workforce.

Turning down a request for more permanent homeworking may be increasingly difficult for employers in circumstances where an employee has been satisfactorily performing their job from home for over a year.  Employers should consider taking advice in these circumstances.

When assessing requests for flexible working, employers must also be mindful of whether any of the employees are protected under the Equality Act, before deciding whether to accept or refuse their requests. For example, working from home may be a reasonable adjustment for a disabled employee or an employee with caring responsibilities.

2. Suitability for home working

For employers who wish to move away from office based working to more permanent home working arrangements, consideration ought to be given as to whether this is suitable for all employees once restrictions have eased.  For example some employees may not have a suitable working area (if, say, they are living in shared accommodation). Moreover, the employee’s role may not lend itself well to homeworking, in particular, junior employees will require guidance and supervision on a regular basis.  Equally, a manager who has responsibility for junior employees may find it more difficult to carry out their duties relating to supervision and guidance when the workforce is home based.

Many employees may have adjustments in place at work due to a disability which cannot easily be replicated at home.

3. Contracts and Policies

Where homeworking becomes regular and permanent, it is advisable to update contracts and policies to address this. There is a legal requirement for the employment contract to state the place of work and there should be reference to any rules which relate to homeworking.  A specific homeworking policy is recommended where a large part of the workforce undertakes homeworking.

4. Health and Safety

Under health and safety law, an employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable.” Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk.

As many homeworkers are desk based, this will include consideration of whether the employee’s workstation is suitable.  Whilst many employees have “made do” at their kitchen table during lockdown, this type of set up is unlikely to be suitable for permanent homeworking arrangements.

Employers also need to consider risks to mental health as a result of homeworking.  Some homeworkers may have difficulty enforcing boundaries between work and home life, leading to an increased risk of stress. They may become isolated and lack the support networks available to those who work in the office. Employers should be aware of this issue and careful thought will need to be given to ensuring that homeworkers are adequately supported through regular meetings, check-ins and wellbeing activities.  Employers will need to consider how to ensure that employees take appropriate breaks.

For employees who already suffer from mental health conditions such as anxiety or depression, spending lengthy periods working from home may exacerbate the symptoms of these conditions and employers may be under a duty to make reasonable adjustments to prevent this.  Again, maintaining regular communication will be important.

5. Performance

Informal appraisal occurs on an ongoing basis in the workplace where there is day-to-day contact.  Keeping up to date with how an employee is performing and progressing may be more difficult where the employee is based at home and employers will need to mindful that homeworkers are not treated differently from office workers as regards identifying training and development needs.  More regular, formal appraisals or performance reviews may be required.

6. Data Protection and Confidentiality

If employees will be processing personal data as part of their duties, careful consideration needs to be given to protecting that data in accordance with data protection law.  The Information Commissioner’s Office (ICO) can issue significant fines for breaches of the law.  In addition, it may be more challenging for employers to ensure that sensitive business information is kept confidential where it is being used outside the office.

Employers should consider whether their contracts, policies and procedures contain adequate provision regarding confidentiality and consider giving training to staff about confidentiality requirements.  Employers should also carry out a data privacy impact assessment of the data protection implications of employees working from home.

The ICO has produced guidance on data protection when working at home which employers should review.

7. Equipment and Insurance

There is no general legal obligation on an employer to provide the equipment necessary for homeworking (unless an employer is under a duty to make reasonable adjustments for a disabled employee).  However, most employers will want the homeworker to use only the employer’s computer equipment, to ensure compatibility with the employer’s systems and to ensure that proper virus protection and security measures are in place.

It will be sensible for the employer to stipulate that any computer and telephone provided by the employer is for business use only and may not be used by anyone other than the employee. It is generally easier to do this if the employer has provided the equipment. Computer and other equipment provided by the employer may also count as a taxable benefit if it is put at the disposal of the employee or their family for private use.

Employers may also wish to amend contracts of employment to grant the employer a right of access to the employee’s home on reasonable notice for the purposes of servicing any equipment that is provided or removing the equipment at the end of the employment relationship.

Any equipment provided by the employer will need to be covered by the employer’s insurance policy if that is possible.  Employers will also need to consider whether making home working arrangements more permanent will have any impact on their employer’s liability insurance.

8. Expenses

Whilst there is no general obligation for an employer to cover the costs of homeworking, this may be expected by employees if homeworking becomes regular or permanent.

Employers should have a clear policy on the arrangements for expenses.  Consideration will also need to be given to the tax treatment of any payments made to employees in respect of homeworking.

9. Remote working abroad

Employees are increasingly requesting to work remotely from another country.  Having employees working from an overseas location can cause complications. An employee’s stay in another country may give rise to local income tax or social security obligations in addition to the continuing UK obligations. There is also the risk that the employee’s activities will create a permanent establishment in that country with resulting corporate tax liabilities for the employer.

Certain countries will require that any person carrying out work locally is subject to the local employment laws, which may be more generous. Benefits such as pensions and health insurance may not be valid for individuals who live outside the UK. It is also worth also remembering until recently it was not an issue for UK citizens to work and live in another EEA country, but that has all changed with the Brexit transition period having ended on 31 December 2020 and therefore immigration issues may arise.

Employers should take advice on the implications of homeworking from abroad prior to agreeing any such requests.

If you have any queries relating to the issue raised in this note, or any other employment law matters, please contact Taylor Walton’s employment law team on https://taylorwalton.com/employment