With significant parts of the UK now in Tier 3, and speculation of a further national lockdown after Christmas, working from home is set to be with us for several months yet. When the national lockdown was first announced in March 2020, it was generally anticipated that the drastic changes to our lives, both personal and professional, would be short-lived. The Coronavirus Job Retention Scheme (‘CJRS’) in its original form was anticipated to run for just 3 months. Now, after being extended three times, the CJRS will have been running for over a year when it is now scheduled to close on 30 April 2021, and despite the rollout of mass vaccinations, no one is anticipating anything like normality, in whatever form, until well into next year.
At short notice, and with a short-term change in mind, many employers initially were not aware of their obligations around home working, and quite understandably, insufficient consideration was been given to the legal and practical challenges it could present. With home working set to continue throughout the pandemic and beyond, it is an opportune moment for employers to review their policies and procedures and consider whether they are acting within the realms of the law with respect to homeworking. We set out some key considerations below:
What is the current position on working from home?
While we are not currently in ‘full lockdown’, the Government’s advice remains unchanged that employees should not go into the workplace except where they cannot work from home i.e. it is not ‘reasonably possible’ for them to do so. This advice is likely to continue for some months. Where employees cannot perform their role from home they may go to their normal workplace, but their employer must ensure it is Covid secure.
Those who are ‘clinically extremely vulnerable’ but who cannot perform their duties from home are still advised not to go into the workplace but may be furloughed under the CJRS, subject to the scheme rules.
Are we obliged to provide equipment to homeworkers?
There is no legal obligation on the employer to provide equipment for home working, but employers need to be mindful of the circumstances and act reasonably when deciding what equipment, if any, to provide. For example, if an employee can access a virtual private network through their personal laptop it may not be necessary to provide a Company laptop if you can be assured that the Company’s data is secure. Conversely, providing specialised equipment may be a reasonable adjustment for a disabled employee, and to not provide it could put the Company at serious risk of a discrimination claim.
Are we still required to comply with health and safety legislation if employees are working from home?
Employers still owe a duty to their employees to protect their health and safety while they’re working from home and cannot avoid their legal obligations in this respect. All employees should be sent a risk assessment form to complete, and be given guidance from their employer in terms of setting up their workstation, sitting appropriately and so on. Employers have the same obligations to home workers as they do to those in the office, and such equipment should be included in a risk assessment and provided to the employee by the Company where necessary.
The obligation to provide rest breaks and observe maximum weekly working hours (where the employee has not opted out) still apply. This obligation extends to the mental health of workers too, which is especially pertinent while the pandemic is ongoing and many employees are feeling isolated and anxious.
Are employees entitled to any additional expenses?
There is no legal requirement for employers to provide expenses to their staff who are working from home. From HMRC’s perspective, an employee may only expense items which they need to perform their role; beyond this, expenses become taxable benefits. HMRC regulations allow for up to £6 per week to be expensed towards the increased costs of homeworking (heating, lighting, broadband etc), and at the employer’s discretion, they can choose to pay this to the employee as a tax-free expense. If the employer chooses not to pay this to the employee, then the employee can contact HRMC themselves and claim tax relief on the £6 per week (£1.20 per week for a basic rate taxpayer).
How can we ensure that our data and our clients’ data is kept secure?
The introduction of GDPR in May 2018 prompted many businesses to revisit their Data Protection policies, and a move to home working should do likewise. While your employees are working from home you will have less control over how they process commercial and personal data, so a clear policy is essential. Use of personal devices should be strictly regulated and minimised where possible. There must be an obligation on employees to store data in both physical and digital form in a secure way.
Employers may want to consider providing additional training to staff on data protection where they are working from home. They should also perform an information security risk assessment based on the home working arrangements and equipment in place.
Can we monitor our employees who are at home?
Software is available that allows you to track employees emails, phone calls, instant messages, and even all of their key-strokes. Recent news coverage has featured employers monitoring their employee’s screens remotely and using their webcams to check they are working. The benefits to the employer of doing this are obvious, and some monitoring will be necessary, but from a workplace/morale point of view, employers may judge that trusting their employees to remain productive at home is preferable to going to such extremes.
Electronic monitoring of your staff counts as processing their personal data for Data Protection purposes, and there are a number of risks associated with doing so. Potential claims or legal challenges can arise under the Data Protection Act 2018 and Article 8 of the Human Rights Act (the right to a private life). In addition, it could constitute a breach of the duty of trust and confidence, entitling the employee to resign and claim constructive dismissal. Employers must tread even more carefully if the data they wish to monitor is stored on an employee’s personal device, where it may be harder to prove that the employee did not legitimately believe that their information would be kept private.
Where monitoring is required, it is essential that is proportionate and that employees are informed that the monitoring is being undertaken and the reasoning behind it. Often this is stated in contracts of employment. Covert monitoring should not be undertaken except in the most extreme circumstances such as where criminal activity is suspected of an employee.
What should employers be doing as a minimum?
With the prospect of a further national lockdown on the horizon, it is an opportune moment for employers to review their contracts, handbooks and other policies, in particular, to ensure that their sickness, data, IT and flexible working policies are fit for purpose during the pandemic and in a future world where homeworking may become the norm. All organisations that have staff working from home should have a clear working from home policy which will help mitigate the risk of Employment Tribunal Claims against them and to fulfil health and safety obligations towards their employees.
Should you have any queries on the above, or would like assistance in developing a working from home policy, or require any other employment related advice, please contact Helen Crossland at [email protected] or on 020 7725 8034 or Fiona Mendel at [email protected] or on 020 7725 8033.