Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
Should every business have a working from home policy?
Specialist employment & HR solicitor Chris Dobbs looks at the shift to working from home culture in his latest article, and advises what all businesses need to consider when drafting a working from home policy.
The impact of coronavirus on the lock down has been keenly felt in the workplace. From new social distancing measures to a major reduction in face-to-face meetings and the rise of the dreaded Zoom call, the workplace has had to be one the fastest areas to adapt to our ‘new normal’.
A year ago, employment lawyers and HR advisors alike were used to questions about homeworking often revolving around a pattern of the employee wanting to and the employer desperately looking for a reason to say no other than simply “we don’t want to”. There are some notable exceptions to this pattern, but Britain has been notably reluctant on a global scale to embrace homeworking.
Coronavirus and working from home
Coronavirus changed this drastically and a significant proportion of the workforce, especially those in administrative or professional roles, suddenly found themselves expected to work from home. With very little regulation and often no policy in place, it is probably fair to say that many of these arrangements were somewhat half-baked; rushed together in the interests of business continuity.
As we edge tentatively back to some kind of normal, and employees begin to return to the workplace, business and staff alike have realised that working from home can and does work. Running a business from a kitchen table may not always be ideal but to many people it could be preferable to being back in the workplace.
Permanent working from home arrangements are going to require a more carefully moulded plan. Failing to plan properly is a recipe for disaster and business and staff alike will probably have noticed some of potential pitfalls over the last few months. Here, we set out some of the most common questions and considerations for a long-term working from home plan.
Should every business have a working from home policy?
Yes, absolutely. While there is no legal obligation to have a policy concerning working from home, any issues arising from employees working at home will be much easier to address if there is a policy in place. This also helps requests to be dealt with consistently and fairly.
If you/your employer does not have a policy, we would strongly advise that one is drafted and implemented as soon as possible and ideally before any permanent homeworking arrangements are put into place.
You can read Chris' article on remote monitoring and working from home here.
Can you be required to work from home?
As a general rule, no. However, a well-drafted employment contract may contain a ‘mobility clause’ which allow the employer to make changes to the location where work is done without consultation.
This is not an absolute and employers should still act reasonably and fairly in implementing a change of this kind. Doing so without good reason or even without consulting does carry the risk of giving cause for a constructive dismissal claim.
Can pay be reduced when working from home?
Not unless both parties agree or the employment contract already allows for this. In the first case, this will be a formal variation to a fundamental element of the contract and so must be agreed and in writing. Such provisions already being in the contract are incredibly rare.
Do employers have to provide equipment to staff who are working from home?
Generally, it is fair to expect an employer to provide all necessary equipment for someone to undertake the role they have been employed to do. If an employee is unable to work because they do not have the correct equipment, that employee will obviously be unproductive. This is not their fault and there is a risk that the employer will be in breach of contract.
Homeworking can complicate matters. Where an employer is requiring staff to work from home, they should be providing the necessary equipment for those individuals to do so in most cases. There is an argument that employees could be expected to use personal equipment, but the vast majority of business have IT and Data Protection policies which would usually ban this and for good reason. Employees will understandably be reluctant to connect personal equipment to a business network for similar reasons.
Whoever makes the request, the practicalities of working from home and going to be a key consideration and everything from the cost to responsibility from moving items from workplace to home will be relevant.
Working from home and data protection
Who is responsible for data protection when working from home?
The ICO has recently stated that data protection should not be an obstacle to homeworking. That said, data protection law and especially where it concerns data processing for GDPR purposes is the employer’s responsibility. Procedures and policies should already exist to protect data and these need to be reflected in homeworking practices.
Working from home policies: Health and Safety
The employer is responsible. The law is very clear on this: the employer is responsible for ensuring that all employees have a safe system of work. It doesn’t matter whether you are in an office, a factory, down a coal mine or working at your kitchen table, the employer is responsible for your health and safety during working hours. This means that the working from home environment should be risk assessed (including digital equipment and usual assessment for computer use) a well as the mental health impacts of isolated homeworking.
Insurance and working from home
There are quite a few insurance situations which might need to be considered before allowing staff to work from home more regularly. Just by way of a few examples:
- Employer’s liability insurance
- Employer’s business insurance (for items carried to and from the workplace and home)
- Employee’s home insurance
- Employee’s motor insurance
Other Issues to consider with home working
As many people have discovered in recent months, working from home is very different from most other types of working arrangement. If you or your business is planning to increase the number of staff working from home more regularly, you will need to consider:
- How requests will be handled and who by
- The nature of working patterns you might expect or would like to see
- How staff working from home will maintain contact and engage in supervision
- What equipment (or contribution towards it) you will provide
- How existing policies will interact with homeworking
- Whether there are external barriers to an employee working from home such as restrictions in a tenancy agreement
- How IT support will be provided, data protection managed and workload appropriately assigned and supervised
A guide to writing a working from home policy
We have created a useful infographic that sets out the considerations when drafting a working from home policy. You can read and download it here.
Legal advice of working from home policies
Having given consideration to our working from home policies and procedures, the employment team at Frettens are able to offer our oven-ready Working From Home Policy as it stands for £125 plus VAT.
Specialist Employment Solicitors in Bournemouth, Poole, Christchurch and The New Forest
Our specialist employment law & HR team have advised many businesses and employees on such matters.
We offer a free initial chat with one of our bright, friendly lawyers to all new clients. Call us on 01202 499 255 or visit the contact us page to get in touch.
Employment law updates
We will post any announcements, along with advice for employers and HR professionals as soon as we are able. These will be shared on our website and on social media.
Our Employment and HR newsletter will continue to be sent out monthly, though as important information is announced by the government, we may send this to you more frequently.
Our quarterly employment training sessions are postponed until further notice, and we are hosting them online instead. Sign up to our newsletter to receive invitations.