Permitting employees to work from home is by no means a new concept for many companies and organisations, but the number of employees working from home in consequence of the coronavirus outbreak is unprecedented.
For employers where homeworking has not previously been used, or at least not on such a large scale, it has become crucial to put in place a clear work from home policy, while continuing to meet the operational needs of their business.
The following guidance provides an overview of the law relating to working from home, including an employer’s legal responsibilities toward their employees, and what a working from home policy should include as a matter of best practice.
What do we mean by homeworking?
Homeworking is where a member of staff is permitted to carry out their daily contractual duties from home on an occasional, temporary or permanent basis.
The employee will typically still work in accordance with the core conditions under their contract of employment, such as the same working hours and pay, but will not be required to go into their official place of work for those days where working remotely has been agreed.
Working from home is a type of flexible working arrangement that can enable employees to meet the demands of their job role while providing a degree of flexibility to achieve a better work/life balance or, as in the current climate, a safer working environment in accordance with social distancing measures.
There are also various benefits to homeworking for your business, including lowering overhead costs, freeing up office space, and a happier and potentially more productive workforce with improved staff retention.
What does the law say about working from home?
All employees have the right to request flexible working after accruing 26 weeks’ continuous service, including homeworking. As an employer, you do not have to agree to any such request by law, although you are legally required to consider a request made and provide sound business reasons for any refusal.
In light of the coronavirus pandemic, many employers have already allowed some or all of their employees to work remotely, as per government guidance that all businesses allow working from home where possible during the crisis.
For those companies and organisations who are still asking their staff to come into their normal place of work, careful consideration should be given to letting those employees who need to self-isolate or shield to work from home, or as a general precautionary measure all round.
Even though any decision to allow homeworking will depend on the individual needs of your business, it is important to bear in mind that working from home is likely to decrease the chances of your employees contracting coronavirus and, in consequence, being unable to work altogether due to sickness. This will also minimise the risk of the spread of the virus within your workplace.
What are an employer’s responsibilities for homeworkers?
By law, all employers are under a duty of care to ensure the health, safety and wellbeing of their employees, including when an employee works from home.
Ordinarily, you would be expected to carry out some form of health and safety risk assessment of the workspace available within the employee’s home environment. A risk assessment can still be completed, even in the current climate, by way of an employee questionnaire, ensuring that every individual feels that the work they are being asked to do can be achieved safely at home.
You will be responsible for ensuring that employees have access to the right equipment and technology needed to conduct their role from home, such as a laptop, mobile phone, suitable business software and good internet connectivity. Where this needs to be set up or provided, you will be responsible for making this happen, together with any necessary training and support to work from home or to use any remote working systems.
During the course of any period of homeworking you should also keep in regular contact with employees, checking on their health and wellbeing. This includes any mental health issues that may arise as a result of high levels of stress and anxiety, or feelings of isolation, caused by working from home or because of work-related issues.
What should a working from home policy include?
Whether you are considering implementing a working from home policy on a permanent basis or as a temporary measure during the current coronavirus outbreak, you will need clear rules setting out any eligibility requirements, how to request working from home and how this will work in practice.
Below we consider some of the key aspects of a working from home policy.
Deciding on eligibility criteria
Your working from home policy should include clear guidelines to let your staff know who is eligible for home working and who is not, as well as how to apply.
When considering eligibility, you will need to take into account the impact on your business of allowing homeworking, and whether this is economically and operationally viable without placing your business at a significant disadvantage.
It may be that the business can survive with only a key number of employees working within certain roles, with the majority working from home. In other cases, working from home may not be possible at all.
Any decision to allow homeworking does not need to be implemented across your entire organisation, although you should be transparent and clear about the basis upon which employees are eligible to work from home, ensuring that this does not discriminate against certain individuals or groups of individuals.
Carrying out a risk assessment
For those who are eligible for homeworking, you will still need to carry out some form of risk assessment for that individual, ensuring that they can work from home safely and reliably without direct supervision, and whether homeworking is feasible in terms of space and equipment, as well as any caring responsibilities, such as for young children or sick and elderly relatives.
Given the social distancing measures currently in place, it is best that any risk assessment is conducted by way of employee questionnaire, documenting the answers that employees provide to help you make an informed decision.
Your questionnaire should include asking details about the employee’s personal circumstances or vulnerabilities that you may need to be aware of. In light of the current pandemic, this should focus on whether the employee is pregnant, has a weakened immune system or a long-term medical condition such as diabetes, cancer, chronic lung disease or respiratory conditions such as asthma, or lives with anyone with these conditions.
You will also need to ask questions relating to the viability of working from home, including access to any necessary devices, paperwork, office furniture, computer applications, software and a secure internet connection.
Establishing a homeworking agreement
Homeworking can be very different to face-to-face work practices, presenting all sorts of new practical daily challenges. It is important that you set out how you expect employees to perform while working remotely, exactly what they are required to do and how things will work in practice.
This should include agreeing to the following:
- At what times the employee will be available to work
- At what times the employee will be able to take breaks
- The ways in which employees will keep in touch and with whom
- Who employees should contact if they have any problems
- Exactly what the employee is required to do
- How their performance will be managed and measured
It is important to recognise that some individuals may find it hard to organise themselves when working from home, so setting daily or weekly tasks may be a good way of providing a suitable structure for those working remotely.
Ensuring cyber security and data protection
When working from home it is important that employees are fully trained in the requirements of the General Data Protection Regulation and the Data Protection Act. If you plan to let your staff use their own devices when working remotely, you need to think about how they will keep any important data safe and private, as well as how any hardcopy files and paperwork will be stored.
You should ensure that homeworkers store and save all online files in the central cloud storage for your company or organisation, and not locally on their own device. Your work from home policy should also include rules such as ensuring employees protect their own devices with antivirus software where necessary. You may need to offer a financial contribution to cover this cost.
Keeping in touch with homeworkers
Regularly keeping in touch with homeworkers is not only essential to the operational needs of your business, but to ensure their health and wellbeing.
It is important that employees have the means to easily communicate with their manager or colleagues, so as to share progress and stay up-to-date with work projects. This might involve new ways of working, for example, using video or conference calling technology, as well as ensuring that employees feel fully supported on both a professional and personal basis.
For those homeworkers with children or other caring responsibilities, you will need to be sensitive and flexible toward their situation. You may need to agree to a more flexible homeworking arrangement, for example, working reduced or different hours, or reducing work targets and being flexible about deadlines.
You may also need to make adjustments to any temporary arrangements to improve an individual’s working conditions, as well as ensuring sufficient IT support to cope with the number of staff working from home at any one time.
What are the risks of getting a homeworking policy wrong?
Ensuring that you have in place a homeworking policy, with clear guidelines as to what is expected of an employee working remotely, is imperative to maintaining the operational needs of your business, as well as the health and wellbeing of the homeworker.
By failing to establish clear boundaries, this could lead to all kinds of issues including a lack of productivity, unmotivated employees, social isolation and over-working or working unsocial hours. By providing guidance and support, maintaining regular contact and monitoring an employee’s performance, you can help to manage and pre-empt any potential issues.
Where an employee is not eligible for homeworking, you should still implement measures to protect your staff during the current crisis. This could be done by providing extra car parking spaces so that employees can avoid using public transport, or by allowing flexible working hours to avoid busy commuter times.
Making changes to working practices can offer considerable benefits to both the employee and employer, but it will be important to have an effective working from home policy in place to have clarity of roles and responsibilities.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management. Working closely with our HR specialists, we offer a holistic advisory and support service for employers encompassing both the legal and people management elements of contract terminations. Speak to our experts today for advice.
Last updated: 5 April 2020