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Home working: an employer’s legal obligations

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As a result of the Coronavirus pandemic, many businesses have been forced to implement new working arrangements and practices for their staff. By law, employers must take all reasonable steps to minimise the spread of Coronavirus, which includes supporting employees to work remotely if possible. This sudden change means that many employers have found themselves facing daunting and uncharted territory when it comes to their legal obligations towards employees working from home.

With many large employers finding cost saving benefits of home working and perhaps having their eyes opened to possibilities brought by remote working, many have advised employees that they will not be required in the office in the same way as pre Covid, or perhaps at all. Employees are increasingly likely to demand flexibility in working arrangements and now have the evidence to show that it is possible.

It will be interesting to see whether the Government legislates to provide employees with greater rights around flexible working. In the meantime, as employers get used to this new way of working, Sacha Carey, employment solicitor with Ergo Law explains how businesses of all sizes should approach remote working.

What are an employer’s legal obligations on home working?

  • Documenting changes to employment contracts

Your employees’ contracts might already contain a requirement to work from home in certain circumstances. If not, asking them to do so is effectively a variation of the employment contract and therefore you should obtain their agreement. There is no need to issue new employment contracts, it is sufficient to document this change by letter, which should specify whether the change is intended to be temporary or permanent. It is also a good idea to confirm that salary, working hours and other terms and conditions of employment will remain the same.

  • Health and safety

Employers have a duty of care to each employee, including those working from home, which means that as an employer you must take reasonable steps to ensure their health, safety, and wellbeing. If you have not already done so, you should conduct a full risk assessment of your employees’ workspace and equipment or ask them to carry out self-assessments if it is not possible for you to do so.

The Health and Safety Executive (HSE) has provided a useful guide and workstation checklist which you can find here.

Consider whether further measures should be put in place in respect of difficulties that may arise in the context of the ongoing pandemic, such as stress. Some employees might find it difficult to enforce boundaries between work and home life which could be accommodated by flexible working hours. Other employees may become isolated and feel that they are lacking the support network that they usually have at the office which can have a detrimental impact upon stress levels and mental health. Try to maintain staff morale and keep the team integrated by encouraging your employees to stay in touch with each other (for example encouraging colleagues to meet up online for a cup of tea and a chat, in much the same way as we would often do as a matter of course in the office- this kind of informal contact between peers can be as important as more formal work related contact or check-ins from a manger).
It is easier for employees to stay at their desks for longer periods whilst working from home than they usually would in the office. Ensure that they take regular breaks and try to provide structure to ensure that employees are not working beyond their contracted hours.

  • Equality

As part of the risk assessment process, you should consider whether any of your employees have health circumstances or protected characteristics, for example, are any of them pregnant or disabled? If so, you will need to ensure that you are complying with any duties that you may have towards them. The requirement to make reasonable adjustments for disabled employees still applies to those working from home, which means that you must avoid putting disabled workers at a disadvantage. You should speak to employees directly to assess their needs and consider whether anybody requires extra equipment to enable them to work from home. If you are still unsure, it may be useful to obtain an occupational health assessment.
It is important to also consider hidden disabilities for example anxiety and depression, which may still provide additional obligations under the Equality Act and may be heightened during the Coronavirus pandemic. Consider whether anything can be done to mitigate the impact that homeworking will have on those with caring responsibilities for example reducing work targets for an agreed period of time or being flexible with deadlines where possible.

  • Expenses

You may have your own expenses policy but should make your employees aware that they can submit their own claim for tax relief on additional household expenses that they have incurred here.
From 6 April 2020 this is based on £6 per week and they will receive their entitlement by way of an adjustment to their tax code.

  • Management

It is likely that homeworking employees will need to be managed differently to when they were working in the office. Communication is key due to the uncertainty of the situation that we find ourselves in. It is important to give clear guidance and support and to be sensitive and flexible towards employees’ individual situations. Endeavour to keep employees updated on any changes to working arrangements and check in on them regularly to discuss any concerns or problems they might be having. Employing a variety of different contact methods is recommended: team meetings are a good opportunity to catch up, assess work levels, share knowledge and ensure that everyone feels included; one-to-one meetings will enable managers to speak with employees on a more personal level about how they are coping and address individual challenges.
Set clear objectives and agree on how performance will be measured, to help improve performance and reduce stress. Scheduling a more frequent appraisal system will help to replace the lack of day-to-day feedback, guidance, and encouragement that your employees would usually receive within the office.
Any monitoring arrangements (such as email or message monitoring) must comply with data protection laws and an up to date data protection and IT use policies are invaluable.
Normal grievance and disciplinary procedures will continue to apply, although it can be useful to implement specific rules in relation to homeworking. It may therefore be useful to implement a homeworking policy to provide clarity for everyone on matters such as how to ensure data security while homeworking.

Acas provides some useful guidance on managing homeworkers, which can be found here.

Sacha Carey is a specialist employment law solicitor, currently working from home, for Ergo Law a female-founded firm of employment lawyers www.ergolaw.co.uk

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