17 March, 2020
On Monday 16th March 2020, the Government announced significant new measures in relation to the COVID-19 outbreak. In particular, there was a focus on social distancing and a recommendation that people should work from home wherever they can.
Whilst at the time of writing, this is not a mandatory requirement, it is possible that this could change in the coming weeks and months and therefore employers need to (if they haven't already) consider what infrastructure they will need to put in place in order to facilitate home working, as well as their legal obligations to employees during this time.
Technical developments and general social movement towards more flexible working has been developing over a number of years with many employers recognising home working as both cost-efficient and a positive thing for businesses and individuals. However, for those new to home working or considering implementing this temporarily due to COVID-19, we address the key points to consider below.
The current guidance is that everyone who can work from home should do so.
This is particularly important for members of staff who may be categorised as 'high risk' and employers should begin by considering the demographic of their workforce to identify anyone who may fall into this category as well as asking such employees to make themselves known to senior management. The definition from the WHO (World Health Organisation) of people at high risk are those with a "underlying medical conditions (such as cardiovascular disease, diabetes, chronic respiratory disease, and cancer)". The Government have also included all those over 70 and pregnant women within this category.
Hours of work: Whilst employees are working from home, you can still require that they work their contracted hours and monitor their productivity to ensure that work is being completed. Employers need to ensure that there is clear communication with employees about expectations over hours of work - for example, if there is any flexibility or if employees are required to observe normal office hours at home.
As a reminder, under the Working Time Regulations 1998, workers are entitled to a rest break of 20 minutes when working more than 6 hours and there are also provisions on maximum weekly working hours. In reality, it can be difficult to actually oversee whether homeworkers take their breaks and so employers should remind their staff of their rest break entitlements and that they have an individual responsibility to ensure they take their rest breaks.
Pay: Staff who are working their normal contractual hours from home should receive their normal pay. The position will be different if they are unwell and this is covered in more detail in our articles which can be found at https://www.forbessolicitors.co.uk/news/46806/coronavirus-covid19
Equipment: Legally, employers are responsible for any equipment they supply and can specify what it is used for. First and foremost, employers will need to ensure that they have the technical infrastructure in place that will actually allow employees to work from home. This needs to be robust enough to ensure that it can cope with the volume of home workers as well as ensuring the basics for communication are in place, such as internet and telephone access. For example, employers should consider whether employees can be issued with laptops to use from home or if they can use their own resources to access business systems remotely. Employers will understandably be concerned over the costs involved with this and it will be a balancing act between what can be done to facilitate working from home, compared to alternatives which could include paying employing to stay at home and do no work, or considering options such as short-time working, lay-off or even redundancies.
Expenses: There are very few rules about what organisations should provide and pay for when their employees work from home and, in particular, who should be responsible for any increased heating, lighting and electricity costs that employees may incur whilst working from home.
The first port of call should be any contractual terms or company policies in place that specify which expenses the employee can claim. However, given the current circumstances and the fact that a pandemic of this scale was not foreseeable, it is likely that many employers will not have existing provisions in place for this type of scenario. In any case, it is advisable for employers to outline who will be responsible for running costs as early as possible, so that all parties are clear on their obligations and what evidence is required from employees in terms of costs being claimed.
There are certain tax reliefs available to employees who work from home involuntarily. HMRC apply this restrictively but, in certain circumstances, employees may be able to claim tax relief for some of the bills they have had to pay such as business telephone calls or the extra cost of gas and electricity but not for things that they use for both private and business use for example, rent and broadband. At present, employees who meet the criteria can claim up to £4 per week (£18 per month) for such expenses to cover the costs of working from home.
Management of home workers: ACAS guidance on effective homeworking explains that an employee working from home needs to be able to cope with working on their own for long periods of time, be confident with limited supervision and be self-disciplined and self-motivated. For employers, a key concern will be the ability to be able to effectively manage, monitor and measure staff working from home, particularly those with limited or no prior experience of this. Therefore, from the outset of any home working arrangement, a key step that employers should take is to brief employees on expectations from them within their role. This will include a discussion on expectations around working hours (as above) but also more day-to-day requirements such as how managers will keep in touch with staff (for example, daily conference calls), how information will be shared within teams and how performance during this period will both be measured and assessed. This will ensure all parties are clear on the parameters of what is expected of them.
Management of employees during this unusual period will undoubtably be a challenge and may require some creative thinking to address new ways of working. However, the reality of these unusual circumstances means that some trust is going to be required to ensure a collective effort is made that will ultimately benefit both employers and employees. For employees in these uncertain times, the option to work from home is clearly going to be preferable than alternatives such as reduced hours or redundancies. For employers, homeworking offers the opportunity to ensure service continuity and allow employees to continue to do at least some work, if not all.
Health and safety: An employer is responsible for an employee's welfare, health and safety, "so far as is reasonably practicable". In particular, in normal circumstances, anyone working from home should have a risk assessment undertaken of their home workstation. Whilst, this may be difficult for employers to put in place in the current circumstances, preparations can be made to undertake these as soon as possible once any employee is set up to work from home. Initially, employers can ask employees to report back on their home workstation as to whether they consider it safe, and if not, why not so that any measures to alleviate the issues can be considered. The Health and Safety Executive provide guidance and tools for business on undertaking risk assessments and have template risk assessment which can be used by employers.
Confidentiality: Employers need to consider how to ensure the protection of confidential information and to minimise the risk of any data breaches. All employees have an implied duty not to disclose confidential information or use it for any purpose other than the employer's business, However, as confidentiality is more difficult to police when an employee is working from home, it will be important to remind homeworkers of the importance of keeping information secure and what measures the employer wants to put in place to ensure this - for example, requiring employees to use a secure online platform to access business systems, not to transfer documents from work to home device storage, not to use software which is not provided by the employer and to minimise the use of paper documents.
We will provide further updates as the situation develops, however if you have any queries arising as a result of this briefing, or you require any advice on the implementation of homeworking, please do not hesitate to get in touch with a member of the Employment Team.
For more information contact Helen McNevin in our Employment & HR department via email or phone on 0333 207 4462. Alternatively send any question through to Forbes Solicitors via our online Contact Form.