Will blended working be the new norm in the UK? Returning to the workplace part 4

Question

Points to note

What are some of the key policy considerations for employers for longer-term working from home or blended working?

The starting point will be appraising the needs of the business,  the overall success (or otherwise) of homeworking during lockdown and the workers’ wishes (see some of the common considerations identified above). Many employers are carrying out worker surveys to gauge worker sentiment. Contractual commitments around the workplace, such as leases and hire agreements, may influence costs assessments and timescale of a policy change. The appropriate mix of home and work will need to be considered to meet company and role requirements, and the preferences of workers. Employment contracts should be checked to identify any available contractual flexibility to minimise risk. For employers looking to return staff to the workplace, see our previous briefing: Returning to work as the English lockdown eases. 

Are there potential employment law risks associated with remote working?

Whether opting for blended working or fully remote working, employers need to evaluate the legal considerations, starting with the employment contracts of staff and the degree of flexibility (if any) these allow. If a contractual change is needed, consent should be sought and engagement with any trade unions would be appropriate. Although decision-making will be mainly guided by business need, good communication with staff to identify potential contractual or equality issues will be essential to avoid litigation or employment relations issues.

Where are staff working?

For the most part, once lockdown commenced, along with a requirement to work from home (wherever possible), employees have worked from UK addresses. It is nonetheless important that employers know if employees are working remotely abroad. Ability to contact the employee will be one aspect but there are also potential tax, social security and compliance issues associated with working outside of the UK.  

Can an employee insist on working from home if they have done so during lockdown? 

It seems highly likely that, if they have  done so successfully during lockdown, employees may request greater access to homeworking. There is no legal right to work from home (unless home working is possible within existing contractual arrangements) but employees do have a right to request “flexible” working after 26 weeks’ employment, which could include working from home. Employers planning on a substantial return to the office should be anticipating such requests and determining their policy approach according to business need and fairness. For many, there will be costs benefits to permitting homeworking. If requests are able to be accommodated, the decision must be fair, consistent and made without discrimination.  

Conversely, can an employer insist that employees continue to work from home?

Many employers are already reviewing their office space requirements, some even announcing a move to permanent homeworking for all staff. Full-time homeworking or a blended approach to working is likely to involve a contractual change, for which employee consent should be obtained. The business reasons for any such change will need to be considered carefully, along with a communication strategy and opportunity for flexibility (if any). For example, are there any individual or practical obstacles to the employer forcing change? Potentially, a permanent contractual change presents a number of employment law and contractual issues, particularly where employees are resistant. The degree of permanency and future flexibility of arrangements should also be considered.

What are some disadvantages employers may encounter with  homeworking?

Having experienced homeworking in the last year, employers will have encountered many initial, practical challenges of a move to remote working. However, amongst many advantages, potentially negative effects which may emerge and need to be addressed include:

• isolation or disengagement from team culture for people who are away from the workplace
• loss of productivity or focus
• difficulties in on-boarding new starters or with integration generally
• less effective supervision and learning opportunity
• distorted perceptions of respective workloads or contribution

Proactive communication and interaction will be key to averting or resolving many of these issues. 

Should the employer have a homeworking policy?

Yes. If an employer does not already have one but plans to extend homeworking, clear contractual terms should be provided and a policy to support safe, fair and consistent arrangements. A policy will typically include: eligibility, conditions and duration/termination, H&S, equipment and expenses, data security and confidentiality etc.

Can employees claim reimbursement of expenses incurred as a result of working from home?

Yes. Employers will either need to provide employees with equipment, such as mobile phones, computers and other office equipment (including stationery) to enable them to work from home, or, if the employee’s own equipment is used, reimburse associated costs (various tax exemptions and reliefs may apply, subject to HMRC conditions). Employees will need to document expenditure, just like any other expense claims.

What health and safety (H&S) responsibilities do employers have with respect to homeworkers?

There has been renewed focus on, and awareness of, managing H&S risks of home working since lockdown started, including upon mental health. Both employers and employees have H&S responsibilities for facilitating safe working and these are the same for working in an office, on a site or remotely from home. If an arrangement is new or will be a more permanent one, employers should review their existing risk assessments (or undertake a risk assessment where one has not been undertaken) to identify the risks to its employees working remotely from home and what mitigating measures can be taken. Alternatively, employees should be asked to carry out an assessment of their work environment and equipment using a questionnaire, checklist or conducting an assessment digitally. Bear in mind that it is not just the physical environment that should be considered but provision to manage stress or excessive working hours is also important. Employers should also refresh the information provided to employees about working safely at home. 

How should employers protect data privacy and other regulatory compliance where employees are working at home?

Again, this is an issue that employers will most likely have considered in recent months but will become more significant if homeworking becomes a more permanent strategy. Data protection policies, privacy notices, etc., will need to be updated. Where employees have access to personal or confidential data from home, the employer must ensure that they have appropriate equipment, software, IT/DP policies and training and other safeguards in place. The ICO has issued “homeworking data security guidance”. Other regulatory requirements, including sector specific provision, will also need to be reviewed to ensure ongoing compliance. For example, regulatory bodies in the financial services sector have issued reminders of the need to adhere to market trading and identity verification standards notwithstanding homeworking.  

Available guidance for employers

Both the HSE and Acas have produced guidance for homeworking and on the specific risks lone workers face. For example, they highlight the need for an employer to assess, with the employee, how home-working arrangements can work best, how display screen equipment should be used safely, and to provide training and support to address potential stress, isolation, any medical conditions and other risks.