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Homeworking is here to stay: are your policies up to date?

Gateley Legal

Just as many businesses were taking tentative steps towards re-populating office environments, taking their steer from the more relaxed message coming from the Government over the summer months, the position that workers should “work from home if [they] can” has now been brought back, and looks like it is here to stay for the next 6 months at least.

When the initial lockdown was imposed back in March, businesses were quick to respond to move workers on to a home-working footing and, for many, this ‘new normal’ has persisted ever since. However, given the clear Government position for the remainder of this year and beyond, now would be a good time to refresh on home-working policies, procedures and red flags.

Here are a few focus points to consider.

Has there been a change to the place of work for the employee?

The Employer may need to go back and consider the basis upon which employees moved to home-working at the start of lockdown. Do you have a contractual right to require the employee to move to work from home? Or has this, to date, been done by informal consent? If this is a change which may be here to stay (at least for part of working time) then now would be a good time for the employer to discuss a change to the employment contract to require home-working at the employer’s request. Agreement to such a change would need to be recorded in writing. If an agreement is not reached then the employer will need to consider the wider issues arising when you seek to change terms and conditions of employment (consultation and the possibility of dismissal and re-engagement: to be discussed in a later in this series OR [Attach link]).

Health and safety of employees in the 'workplace'

As the employer, you are responsible for the health and safety of your employees in the ‘workplace’. This includes where the employee’s ‘workplace’ is their home address. Employers should ensure that they have carried out an adequate risk assessment to identify any hazards and risks associated with an employee working from home and should ensure that any equipment provided is safe and checked regularly. Given the restrictions on entering households and the need to operate in a COVID-safe manner, this is likely to be better achieved by a virtual tour of the workstation and/or requiring the completion and return of on-line risk assessments and/or training by each employee so that any issues can be identified and actioned and, crucially, the employer has a record of this having been done.

Insurance cover for company equipment

Employers should ensure that their insurance extends to any equipment used by a homeworking employee in the home setting, or should require the employee to ensure that any company equipment used by them at home is covered under their own contents insurance, and if it isn’t then to arrange (at their own expense) insurance cover for company equipment while it is at their home. Evidence of such insurance should be requested.

Data security and confidentiality

Homeworkers may need specific training on their obligations and those of the employer in relation to data protection and confidentiality, concerning the procedures which they must follow, and what is, and is not, an authorised use of data. Employers should also carry out a data privacy impact assessment of the data protection implications of employees working from home. Common sense ideas include ensuring that all work is carried out on employer-provided equipment, that suitable systems are in place for the secure storage of any paperwork and that passwords are not shared. Again, a clear paper trail should be kept by the employer detailing what measures they have taken in this area.

The use of equipment for private use

If the employer provides a computer for home use then there will be no charge to income tax for the provision of this benefit provided that any private use is ‘insignificant’. To avoid any issues employers may wish to include a clause in any homeworking agreement whereby the employee agrees that any private use will be insignificant.

Does your business have a homeworking policy? 

It could be a useful place to encapsulate the business’s approach to homeworking and to raise awareness of the issues raised above, the interplay with flexible working and how remote management of performance and conduct will be carried out.  It is also an opportunity, if applicable, to make clear that homeworking is a temporary arrangement in direct response to the COVID-19 pandemic; i.e. employees should not see it as a permanent change to their contractual terms.

Many businesses have embraced the positives that these enforced changes to working life have brought and, its fair to say, many are unlikely to return to pre-COVID ways of working even once the crisis has passed. Now is the time to ensure the current position is fit for purpose and put your business on the best and most dynamic footing for re-emergence in due course.

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