Since March 2020 remote and hybrid working have become much more common, often as a consequence of being required to work from home due to the lockdowns associated with coronavirus. However, such remote working programs may have been implemented rapidly by employers without the usual employer policy and contract of employment provisions that formalise and support such work patterns.
The UK Government has now delayed the final stage of moving out of lockdown, so that remote working is still recommended until 19 July 2021. But even beyond that, home and hybrid working appear here to stay.
The benefits of home working have become apparent over the past 18 months: lower overhead costs for the employer, an increase in productivity, better motivation of staff, skills retention and access to a wider pool of employees, and increasing the resilience of the employer. However, there can be drawbacks: lowered control and team culture, potential data protection risks, junior staff lacking direct mentorship, dependency on technology and the possibility of homeworking individuals experiencing loneliness and feeling alienated from their team.
Important considerations when introducing and managing remote working:
i. Contract considerations:
The contract of employment may need to be tailored to include the ability to work from home. If there is a mobility clause already in the contract of employment, this may suffice to administer any remote working required, both temporarily and permanently.
If the contact of employment does not provide for remote working, and the employee agrees to the variation to the contract to include home working – which is the usual scenario – the contract of employment may be validly varied by agreement. However, if the employer seeks to mandate home working to which the employee objects then there is a risk of a unilateral variation or dismissal and re-engagement by the employer – resulting in a dismissal of the employee and possibly leading to claims for unfair dismissal/discrimination.
A flexible working application may also lead to an agreement by the employer to vary the contract of employment so that the employee may work from home on a full or part time basis, and for a temporary or permanent period.
It is also advisable to set out in detail the management process applying to remote and hybrid staff in a non-contractual internal policy, so that the employee and employer are clear on how the home working process will be supervised and managed, applying clear expectations around confidentiality and data protection.
All other contractual benefits and controls that apply to staff in the workplace should also apply to those staff who work from home, for example access to the staff gym or restaurant, or benefits and bonus schemes; also controls such as the disciplinary and sickness absence management policies. Differentiation of contractual benefits on the basis of home working may amount to indirect discrimination that may not be justified.
ii. Section 1 Statement
Employers are required to provide employees and workers with a Written Statement of Particulars of Employment (Section 1 Employment Rights Act 1996), which must include details on the place of work and hours of work.
If a contract of employment is varied to include the right to work from home – temporarily or permanently, full remote working or hybrid working – the employer must provide the employee with an updated written statement of particulars of employment.
Hours of work may also need to be reviewed and articulated on the Section 1 statement when introducing home working. Consideration should also be given to providing for a contract term that requires the employee or worker to comply with the statutory rest breaks required by the Working Tome Regulations 1998 when working from home.
iii. Confidentiality and Data Protection
A homeworking employee or worker will continue to owe a duty of keeping the confidential information of the employer confidential implied into their contracts. However, express terms on confidentiality should be included into the contract of employment to define and deal with the confidential information of the employer, the management of personal data when the employee works from home, and also including a term on deletion of any personal or confidential data held by the employee on their personal devices on termination of employment.
The employer remains responsible for maintaining the integrity of the personal data it stores and processes, including personal data stored and processed on the employee’s home working equipment. Steps must be taken to assess the risk of personal data breaches and mitigating steps taken such as privacy notices, data protection policies, staff training on the Data Protection Act 2016 and General Data Protection Regulations, multiple password use, encryption etc. The Employer may need to carry out a Data Protection Impact Assessment to inform the above steps.
iv. Health and Safety
Employers have common law duties towards the health and safety of the homeworking employees and workers:
- They all have a duty to take reasonable care for the health and safety of their employees and others whom it might be reasonably foreseen could be harmed as a result of their activities.
- They must provide and maintain a safe place of work, a safe system of work and safe plant and machinery.
- They can be vicariously liable for the negligent acts of their employees while working in the course of their employment.
Under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) employers must conduct a suitable and sufficient risk assessment of all work activities carried out by their employees, including homeworking/hybrid working employees and workers, to identify hazards and assess the degree of risk.
The Health and Safety Executive and ACAS both produce useful guidance on managing the health and safety of home workers: https://www.hse.gov.uk/pubns/books/hsg268.htm
Issues that may arise include stress and mental health support, equipment provision and servicing, first aid, and accidents at work when working at home.
v. Display Screen Equipment
Under The Health and Safety (Display Screen Equipment) Regulations 1992 (SI 1992/2792) (DSE Regulations) an employer must identify health and safety risks for users of DSE and reduce those risks to the lowest extent reasonably practicable.
The Health and Safety Executive (HSE) stipulate that anyone homeworking long term must have the risks associated with DSE controlled and provides a checklist to assess/monitor a homeworker’s workstation and desk space: https://www.hse.gov.uk/pubns/ck1.htm
vi. Special Equipment
There is no legal duty on an employer to provide special equipment in general. However, if an individual employee or worker has a disability, an employer may be under a duty of care to make a reasonable adjustment to its policies or procedures, or the environment or provide an auxiliary aid to facilitate the disabled person’s performance of their role.
vii. Insurance and Taxation
Any equipment provided by the employer should ideally be insured under the employer’s insurance provision.
An employee or worker who works full or part time from home, remains an employee or worker and so subject to the usual PAYE tax deductions and NI contributions.
The above are just some of the main considerations when moving an employee or worker to, or managing an employee or worker in, a remote working at home position.
Hanne & Co’s Employment Law Team offer a full contract of employment and employer policy review service that includes providing terms on remote and hybrid working, data protection, and confidentiality for home workers. We can assist you to tailor your future contracts of employment to embed such flexible types of working into your organisation.