Working from Home: Returning to work in the coronavirus world

Malcolm Gregory, Partner and Employment Law Specialist, Royds Withy King

In part 1 and part 2 of our ‘Returning to work’ series, we looked at preparations in the workplace to ensure a safe system of work, and the return of staff to the workplace. In this third and final part, we examine the pros and cons of working from home and issues employers need to consider if staff continue to work from home on a longer term basis.

Introduction

Many employers may be quite content for their employees to remain working from home. However, if this is to continue on a semi-permanent or even permanent basis, there are various issues which need to be taken into consideration, including health and safety and possible contractual changes.

Employers have an obligation to do all they reasonably can to set up a safe system of work and ensure that this is implemented. This applies not just in offices, but where the employee is working remotely. There is a general duty to protect employees with regard to the systems of work used to ensure they are safe and without risk to health and safety, and provide information to the employees about this.

Workstation assessment

The most important concern is a work station assessment. Consideration should be given to whether there are any health and safety issues regarding their workstation and whether staff have the proper equipment set up to work from home. The employee is likely to have to do this assessment themselves under guidance, and with the employer’s sign off, but the employer retains ultimate responsibility for this.

If the employee is experiencing problems, he or she may need to send in photographs of the workstation for the employer to understand how best to resolve the issue concerned. Bear in mind the employer is not in control of the physical space where the employee is working and so has to rely on the accuracy of what the employee is relaying to them.

There may be an obligation on employers to fund equipment depending upon whether it is needed for work purposes and whether, without it, there is a health and safety risk. If equipment is needed for health and safety reasons, there is a non-delegable duty on the employer to fund these costs. Some companies may consider providing budgets to employees to buy equipment such as chairs, dual screens and perhaps a sit/stand desk if needed.

Employers must consider the supply of IT support and, if this is needed for home working, this should be supplied. They will need to look at the type of equipment which is needed and for how long. This may be affected by the seniority of the staff concerned, because the equipment needed for a junior member of staff may be very different to that which is needed for more senior people.

Other points to consider are:

Managing the mental health issues of lone workers because of the isolation. They should ensure that regular contact, via telephone and video meetings is maintained.
Supervision of staff, which may be more difficult in a remote environment. Employers will need to put in place mechanisms to ensure this takes place.
If working from home is to become permanent, employers may need to look at the contract of employment and whether they need to change the person’s place of work, perhaps by way of a side letter variation to the contract. They will also need to provide information to employees about how to work safely from home, mindful of providing the required support both in terms of equipment and psychological support.
Employers should look at implementing a working from home policy and ensuring that all employees who are working from home have a copy of it and adhere to it.

Pros of home working

Reduced overheads for employers: less need for expensive office space.
Increased productivity: employees do not have to grapple with the stresses of commuting and public transport and can spread their work time over the entirety of the day instead of being constrained by office hours.
Better motivation: many employees are more motivated working from home with the flexibility this affords.
Skills retention: if employees who might otherwise have to give up work for childcare or health reasons can continue to work from home, their skills and experience are retained by the employer instead of being lost.
Businesses which have more staff working from home have less issues with things such as public transport travel disruption, adverse weather conditions preventing employees getting to work.
Team flexibility: geography and travel time is less of an issue because people can be linked up via videoconferencing facilities for team meetings.

Cons of home working

Less control over what staff are doing and losing the team culture that is prevalent amongst people working on a daily basis together.
Different working styles may be needed to oversee home workers and managers may not be able to support them to the same degree.
Businesses will be reliant to a high degree on trusting their employees to work conscientiously and to the same high standard as they would in an office. There may be a concern that some employees might not “pull their weight”.
Risk of data security breaches.
Risk of feelings of isolation and loneliness for staff working from home on their own, and they may miss workplace facilities and the collegiate atmosphere.
Over-conscientious employees won’t have a “stopping point” to their day to leave their desk and go home, so may end up overworking to the detriment of their health.

Contractual issues to consider

Variations in terms of conditions with regard to:

Place of work

Hours: with the ability to effectively work their own hours, employers might want to ensure that they are available at work during the core working hours.
Expenses: travel costs to attend the office; telephone, lighting and heating; any increase in insurance to cover working from home. Also items such as printer paper, ink cartridge, stationery etc.
Security of confidential information.
Whether the employee is attached to a work hub and how this will work in contact with colleagues.
Consider allowances which are linked to where the person is based for work purposes, for instance London weighting. It may be a controversial point to address, but if they are working from home on a permanent basis in a rural environment, with no need to travel into London, employers may look at consulting with them in respect of reducing their pay if it includes London weighting. This should not be undertaken without careful consideration however, and will almost certainly meet resistance, especially if it is the employer who is insisting they work at home rather than the employee wanting to do so.
Employers might want to consider a trial period of homeworking to see how it operates. They might also want to look at including a contractual entitlement to reverse the arrangement should this prove necessary from a business perspective. However, requiring the employee to revert to office working where homeworking has been satisfactory may give rise to an allegation of breach of mutual trust and confidence and claims of constructive unfair dismissal, so care with reasons why should be taken here if requiring the employee to return to the office.
Employers should reserve a “right to enter” the home of the employee to install equipment or to undertake a risk assessment.
Tax implications arising from working at home, both in respect of deductible items such as equipment and household expenses (which is beyond the scope of this note).
Entitlement to holiday, sickness absence and pay, operation of disciplinary and grievance procedures and other policies should all remain unchanged but operated remotely although the reporting for sickness absence may have to alter.

Data protection and security

Employers may find it more difficult to ensure data security if employees are working from home, especially if they are not using company computers or laptops. To ensure data is protected as much as possible, the following tips are recommended:

Ensure all computers are encrypted and that staff log out when they are not in use.
Make sure that employees ensure that no other people i.e. members of the family, have access to their computer because of the risk of corrupting data.
Computers and laptops should be regularly backed up and information not just saved to the hard drive. All programs used should be up to date.
Any hard copy documents should be destroyed under a managed confidential waste programme. Either such documents should be taken to the central office for destruction, or the employees must ensure that they are confidentially destroyed. If they are held in the employee’s home, they should be kept securely put away.
Ensure the security of video conferencing facilities such as Zoom or Microsoft teams.

Conclusion

Generally speaking, changes which are agreed with the employee will not be difficult to implement. However, any changes to pay or hours will need to be by specific consultation and may be more controversial to implement.

Employers may find more requests for flexible working because the pandemic has demonstrated that far more people than might previously have been thought are perfectly able to work from home. If employers reject such requests, they will need to have a very sound business reason, within the regulations’ categories of reasons for refusal, to do so. If the basis for refusal is connected to a protected characteristic, there will be a high risk of claims.

The Employment & HR team at Royds Withy King is on hand to steer businesses through the minefield that lies ahead. Contact Malcolm Gregory on 01865 792300 or email malcolm.gregory@roydswithyking.com

We recently conducted two surveys to better understand the HR impact of Covid-19. Read our report here to gain an insight into the major issues that 550 HR decision-makers and job-seekers told us they are grappling with.