Given the current work from home requirements due to the COVID-19 outbreak and the phased return to work post-lockdown, home working is expected to become more widely adopted. For employers, this means giving full consideration as to how home working will work on a longer term basis, and what this means in terms of assessing and mitigating risks.
Advantages of allowing employees to work from home
There are many benefits to both parties if an employer allows their employees to work from home.
Reduced overhead costs for the employer
Having fewer people in the workplace reduces costs such as electricity, heating and even tea bags and milk, and if most staff work from home all of the time, an employer may find they can move to smaller, cheaper premises.
On top of the reduced lighting and heating requirements, employees are not commuting and so use their cars and public transport less.
Cheaper for the employee
Although their household costs may increase slightly because of an increased use in electricity, heating and possibly higher food bills, employees often save money when working from home by not having to pay commute costs, buy lunch, and so on.
Employees who choose to work from home are often much happier. Missing the daily commute and consequently having more free time, is a huge factor in peoples’ wellbeing. Happy employees are usually more productive and tend not to move jobs as often, leading to lower staff turnover.
An employer who focuses on their employees’ wellbeing, for example, by permitting flexible working arrangements, can gain a reputation for being a ‘good’ employer. As a result, they tend to receive job applications from high calibre applicants.
Larger talent pool
By allowing people to work from home, applicants who live a long way from the office or even in another country, may apply for jobs.
Reduced sickness absence
An employee who works from home is less likely to take a sick day if they are slightly ill, for example, with a cold, as they do not run the risk of passing it to their colleagues. This reduces the costs and inconvenience of sickness absence for the employer.
Disadvantages of allowing employees to work from home
Notwithstanding the above, there are also some disadvantages to allowing employees to work from home.
For the reasons already given, working from home can increase productivity but there may be certain employees for whom working from home may not be ideal from a motivation or productivity point of view.
Having people away from the office can adversely affect the ‘team feeling’ and camaraderie between colleagues and could lead to under-utilisation of the employee if other staff members are not aware of them.
Some employees may miss the social interaction of the office and struggle emotionally and/or mentally with a prolonged period of working from home.
Risk of privacy/confidentiality breaches
Allowing people to work from home could increase the risk of privacy/confidentiality being breached, for example, because papers and IT equipment are not kept in the office.
Legal risks and considerations for employers
In addition to the above factors, there are other specific considerations for employers, some of which constitute legal obligations.
Health and safety
Employers have a responsibility for the health and safety of their workforce, and this extends to employees who work from home.
It is crucial that a WFH policy covers health and safety issues and that an employer is able to meet their obligations in this regard. For example, can an employer visit an employee’s home to check whether there are any health and safety risks?
Mental wellbeing should also be considered, and employers may want to arrange online team meetings or off-site get-togethers to allow colleagues to meet up. In addition, employees should be reminded to take regular breaks; this may be more important in a home working environment than in the workplace where individuals can have a chat with a colleague or go out for lunch.
Obligations on the employee can also be included, for example, having to inform a manager if any health and safety issues arise.
Much as they would do if an employee were physically in the workplace, an employer should carry out a risk assessment for any employee who works from home. This will cover factors such as whether there is adequate lighting and airflow and the position of their desk, chair, and so on. Training may need to be given to relevant employees in this regard.
If any changes are needed, it is the employer’s responsibility to ensure that these are made although it is then up to the employee to maintain these going forward.
Employers should also bear in mind that they may need to make ‘reasonable adjustments’ if any employee working from home has a disability.
The employer will also need to consider whether they need to provide any equipment to the employee. A laptop and mobile phone may suffice but other equipment such as a mouse, headset, multiple computer monitors, printer, and so on, may also be necessary. Of course, employers could choose to allow their employees to use their personal IT equipment although confidentiality requirements should be borne in mind.
The WFH policy should cover the support to be provided in setting up the equipment, the return of the equipment once the employee’s contract of employment has terminated and the obligations on the employee to care for the equipment and to notify the employer if any malfunctions or is damaged, lost or stolen.
Other IT issues may also need to be dealt with, such as whether the employee has adequate broadband to allow them to work from home.
Breaches of confidentiality are a risk for employers who permit working from home. Computers could be left unlocked or telephone conversations be made in cafes or while friends are in the house. It is imperative therefore that this issue is dealt with in the WFH policy.
Where personal IT equipment is used by the employee for their work, consider that they may not have adequate passwords or antivirus software and that documents could be saved on the hard drive.
Another issue is whether documents and confidential information should be returned to the employer at the end of the employee’s contract of employment. The employer needs to be satisfied that the employee has no further copies and that everything has been returned or destroyed.
Normally, a person commuting into the workplace would not claim their commute costs as expenses, but employers need to think about whether to allow employees to claim for travel costs on the days that they come into the office. Also, should other expenses be covered, for example, broadband costs if the employee has to improve their broadband speed to be able to work from home?
Employers may want to advise their employees that their mortgage provider might want to be notified and need to give consent to home working.
Developing a working from home (WFH) policy
All employers who are willing and able to let their staff work from home should put in place a written working from home policy.
The role of the WFH policy is to clearly set out the terms on which an employee may work from home. This ensures certainty among all staff members and managers and ensures that there is a consistent approach for all employees who work from home. As such, it is important that a WFH policy is detailed and clearly written.
There are various points and issues which employers should consider before putting in place a WFH policy. As such, and given the potential legal obligations on an employer, it is advisable to obtain legal advice before embarking on a WFH policy or WFH arrangements.
Some elements of a WFH policy will be fairly standard and seen in the majority of these types of policies. However, some sections may be of relevance only to certain industries or employers. The issues mentioned in this section are a non-exhaustive list of what could be included in a WFH policy.
A WFH policy should set out which type of employees can work from home and which cannot.
Some employers will find that all of their employees are able to work from home while others may find that only certain parts of their workforce are able to do this. Office work is a classic example of an employment-type which is suitable for home working but even then, certain departments may not be able to complete their jobs properly from home, for example, people who work in the post department, staff canteen workers and so on.
It may be beneficial to insist on new employees coming into the workplace for a period of time before allowing them to work from home. This can help them to settle in and ensure that they are able to complete any necessary training or inductions.
Some employers will allow their employees to work from home on a full-time basis with perhaps a monthly visit into the office, while others may allow individuals to work from home on a temporary basis or for a certain number of days a week. This should be made clear in the WFH policy.
Being able to monitor an individual’s performance if they work from home is extremely important, particularly if they work from home the majority of the time. Employers should consider how they can best do this depending on the individual in question and the type of work they do. Keeping a check on their hours may not be sufficient; instead, an employer should think about how they can monitor a person’s output. That said, this should be done with care and thought – an employee is likely to not look too kindly on an employer who is constantly checking on their progress and making them feel that they cannot be trusted.
Keeping in regular contact is important and the WFH policy should consider how this will be done. The obligation can work both ways to place some responsibility for maintaining regular contact on the employee.
Making a home working request
The process for making a WFH request should be set out in the WFH policy. If each employee has to make a separate request which is to be considered by say, their manager, the process should be explained. This should include the information required from the employee, how long the manager may take to make their decision, how the manager will inform the employee of their decision and the appeals process.
If, however, the employer permits most employees to work from home then the process may be simplified. Or, if the employer allows employees to work from home once a week, then perhaps each individual only needs sign-off from their manager a few days in advance.
Even if an employer does not have a working from home policy or a standard position with regard to working from home, all employees who have worked for at least 26 weeks’ for an employer are entitled to make a flexible working request, which could, among other things, be a request to work from home either temporarily or permanently, whether on a full-time basis or for a number of hours or days a week.
Employees can only make one such request each year.
Employers are legally obliged to consider any request made for flexible working and must give their decision within three months of the request unless a longer period is agreed with the employee. Any changes to the employee’s contract of employment must be made within 28 days after the request has been approved.
If an employer receives a request for flexible working, it must be dealt with in a ‘reasonable manner’. Failure to do so, could result in the employee bringing an employment claim against the employer.
Employers have to consider the pros and cons of the request, meet with the employee to discuss the request and should inform the employee of the appeal process if their request is denied. Although an appeal process is not a legal obligation it does help to show that the employer has considered the request in a ‘reasonable manner’.
Employers can refuse a flexible working request if they have a good business reason for doing so. This may be because clients will not receive the service expected, the extra costs may adversely affect the business, the quality of the work cannot be guaranteed and so on.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management and employment law risk mitigation. We can support with the transition to home working, including advice on developing a working from home policy and guidance on conducting health & safety risk assessments. Working closely with our specialist HR consultants, we provide a comprehensive approach with practical solutions. Speak to our experts today for advice.
Last updated: 1 April 2020