October 5, 2021
Fflur Jones sets out the various legal and business considerations for managing employees working from home and implementing hybrid working practices.
Should office-based employees continue to work from home?
In Wales, the Welsh Government guidance continues to encourage those who can work from home to do so. There is an expectation that employers should be as flexible as possible and make adjustments to ensure staff are able to work from home wherever that is possible.
In England, the UK Government guidance no longer requires employees to work from home where possible. However, employers will still need to be mindful to adhere to Covid-19 safety measures, in order to prevent the spread of Covid-19 in the workplace.
Health and Safety
What health and safety obligations do employers have in relation to homeworkers?
Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and wellbeing of all their employees and provide and maintain a safe system of work. This duty applies even when their employees are working from home.
Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers and hybrid workers, to identify hazards and minimise the degree of risk.
If an employer is not able to carry out a full risk assessment due to COVID-19, they should provide their employees with information on working safely at home. This could include asking employees to carry out a self-assessment of their workspace and equipment.
When undertaking risk assessments, important issues for employers to consider include:
Looking after mental and physical health
Equipment and technology
Supporting employees to adjust to homeworking
Setting clear expectations in relation to communications, working hours, availability and so on
Keeping in touch to ensure that employees working from home are healthy and safe
Are there additional duties where employees are using laptops and computers at home?
The Health and Safety (Display Screen Equipment) Regulations 1992 (DSE Regulations) set out duties that an employer must comply with in respect of every employee or self-employed person working for them who habitually use DSE as a significant part of their normal work. These include:
Identifying the health and safety risks for users of DSE
Reducing the risks identified to the lowest extent reasonably practicable
In order to reduce the risks identified, HSE guidance on protecting homeworkers states that employers should provide guidance and information on health and safety risks arising from homeworking and should ask employees to assess risks in relation to DSE issues.
Equipment and expenses
Do employers need to provide homeworkers with equipment to use at home?
There is no legal obligation on an employer to provide the equipment necessary for homeworking or hybrid working.
A decision will therefore need to be made about the responsibility for providing and funding equipment for those working from home. If equipment is provided, employers should consider the applicable common law and statutory health and safety duties.
ACAS recommends having clear policies around work equipment and technology, including how any issues should be reported, how use will be monitored, the data protection and cyber security rules, and the process if a work device is lost or stolen.
If a homeworker has a disability, the provision of certain equipment (or reimbursement of the employee’s equipment expenses) may be required as a reasonable adjustment under section 20 of the Equality Act 2010.
Do employers need to pay for any additional homeworking expenses?
Homeworkers may incur increased expenses as a result of using their own heating, lighting and broadband while they are working from home.
There is no legal obligation on an employer to reimburse expenses incurred by an employee working from home. However, employees may be able to claim a deduction against taxable income for certain household expenses and travel costs. For a household expense to be tax deductible, the expense must be incurred wholly, exclusively and necessarily in the performance of the duties of employment.
If an employee meets this requirement, the following deductions can be claimed:
The additional cost of lighting and heating a room while being used for work.
The metered cost of water used in the performance of duties (if any).
The unit costs of business telephone calls and business internet connection.
Data Protection and Confidentiality
How should employers manage the increased risk to data protection and confidentiality?
Although it is more difficult to manage data protection and confidentiality when employees are working from home, the normal duties to protect employer and client confidential information continue to apply.
Homeworkers and hybrid workers may need specific training on their obligations and those of the employer in relation to data protection and confidentiality. This would include the procedures which they must follow, and what is, and is not, an authorised use of data.
Employers should carry out a data privacy impact assessment of the data protection implications of employees working from home. This should consider issues such as:
Who will have access to the employee’s computer and personal data stored on it?
Does the remote working system permit the employee to encrypt or password-protect information?
Where paper files are kept, are there suitable systems for storage such as secure filing cabinets?
Are there rules on retention of documents, proper disposal (for example, shredding) of paper-based records?
What measures will need to be taken against accidental loss, destruction or damage?
Contractual and policy provisions
Does an employer need to amend the employee’s employment contract to reflect hybrid or homeworking arrangements?
For existing employees, a change from workplace-based working to remote working may be a change to the terms and conditions of employment. Employers can only vary the terms of an employment contract with the agreement of the employee or if they can rely on a ‘flexibility clause’ in the employment contract which would allow the employer to unilaterally vary the terms of the contract.
When creating or amending existing employment contracts, employers should consider the following important contractual provisions:
Place of work
Employment contracts must specify the employee’s place of work or, where the employee is required or permitted to work at various places (including their home), an indication of that and the address of the employer. Employers may want to maintain a degree of flexibility to ensure that they are able to require the employee to attend the workplace from time to time, for example, for client meetings or training. Employers may also consider restricting the geographical remit from which employees can work remotely to ensure they are within commutable distance of the workplace.
Hours of work
Employment contracts must clearly outline employees’ working hours or when they should be available for work purposes.
Employers also have a legal obligation to ensure that staff working from home comply with the limits on working time. Failure to take reasonable steps to comply with the limits on working time or the record-keeping requirements will render the employer guilty of a criminal offence.
Since no one will oversee whether those working from home take their breaks, the contract or policy should make it clear that those working from home are responsible for regulating their own working time and taking breaks as appropriate.
If employers have reservations about permanently implementing hybrid or homeworking arrangements, it is sensible to have an initial trial period and a right to require the employee to revert to workplace-based working at the end of that period.
If an employer implements a trial period, the duration and the measures used to identify success or failure should be clearly set out. If the trial period is unsuccessful, the notice period required before the employee must revert to workplace-based working should also be made clear.
How we can help
We can provide the following support to help your business navigate the complex issue of implementing hybrid work arrangements in the workplace:
Advice: providing advice and assistance in relation to managing or implementing hybrid or homeworking arrangements
Policies: reviewing existing hybrid working policies and/or providing new template policies and documents
Training: we are able to provide tailored training on the legal and HR considerations of hybrid working arrangements through the medium of English and Welsh
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