Working From Home - The New Normal?

As the Government is accused of giving mixed messages on staff returning to offices, ONS data shows that one fifth of workers are still working from home full time. Employers are now faced with a decision as to whether to allow their staff to work from home on a permanent basis, some of the time (‘hybrid working’) or full time (‘home working’).

There is expected to be an increase in the number of hybrid and home workers and this presents employers with a range of legal and practical issues: changing employment contracts, reviewing HR policies, taking appropriate measures to protect their confidential information and security of personal data, reviewing health and safety arrangements, and arrangements for management and supervision. To assist, ACAS have produced a Guide for Employers and Employees on Homeworking: https://www.acas.org.uk/sites/default/files/2021-03/homeworking-a-guide-for-employers-and-employees.pdf and a Homeworking Checklist: https://www.acas.org.uk/homeworking-checklist

Contractual Changes

• Employment contracts must include particulars of the employee’s place of work. Where changes are made to this, including allowing the employee to work part of their time from home, there is a statutory requirement to provide a written statement to the employee with details of the change. Where employees are requesting this change, their consent should not be a problem, but if employers want to impose this change it will be more difficult, and relying on a mobility clause may not allow them to make the change without consent.
• For hybrid arrangements, the contract should include the minimum attendance required at the office.
• A clause should be added requiring attendance at the office at certain times e.g. team meetings, appraisals, disciplinary hearings.
• Employers may wish to restrict how far away from the office employees can work to ensure a reasonable commute when they are required to attend, and whether they are permitted to work outside the UK. See our previous advice in this situation https://jurit.com/overseas-one-year-on/.
• The Working Time Regulations 1998 continue to apply and the contract should provide that home workers are responsible for regulating their own working time and taking rest breaks.
• As confidentiality is more difficult to police when employees are home workers a more detailed confidentiality clause is advisable, in particular, providing how to keep confidential information secure using passwords, secure filing cabinets and facilities for disposal of confidential materials.
• The contract or expenses policy must be clear on what expenses home workers can claim e.g. telephone, broadband, heating and lighting, increased home insurance and travel to the office?
• Employers should reserve the right to enter the employee’s home e.g. to carry out a risk assessment for health and safety purposes or install or recover their equipment.

Data Protection

Employees working from home will need training on their obligations in relation to data protection. The Information Commissioner’s Office has produced guidance on ensuring compliance with data protection law for home workers.  https://ico.org.uk/for-organisations/working-from-home/how-do-i-work-from-home-securely/

Employers making home working arrangements permanent should consider carrying out a data privacy impact assessment (DPIA) to consider:-

• appropriate security measures to ensure only the employee can access their computer and materials stored on it;
• how computers should be secured when left unattended;
• requiring regular password change;
• whether employees are able to encrypt or password-protect information;
• providing shredders to dispose of print outs confidentially.

Health & Safety

When moving from temporary home working during the COVID-19 pandemic to permanent arrangements, employers will need to re-visit health and safety risk assessments carried out during the pandemic, and health and safety policy documents. In particular employers should address:-

• Stress and mental health considerations, because the pandemic has shown that homeworking can lead to feelings of isolation and a blurring of the boundaries between home and work life, leading to increased stress. In May 2021 the Government published new guidance for employers on addressing loneliness and isolation: https://www.gov.uk/government/publications/employers-and-loneliness/employers-and-loneliness
• What equipment, including Display Screen Equipment (DSE) will be provided to home workers? This has implications for ensuring confidentiality and data protection, and also the statutory duty to provide a safe working environment. Any equipment supplied to home workers must be fit for purpose, maintained in good working order and inspected regularly. Specific regulations apply to DSE, and employers should conduct home visits for workstation assessments where home working becomes permanent. Responsibilities extend beyond the provision of computers to providing information and training on good posture, adjusting chairs and other furniture and lighting, as well as instructing employees to take breaks and providing eye tests where requested.

Addressing these issues will ensure that when home working becomes permanent the position is clear in these significant areas, reducing risk for employers.

Photo by Shridhar Gupta on Unsplash