Continue working from home; return to the office or a hybrid of both? WHAT IS THE LEGAL POSITION?

As the Government moves to lift all limits on social contact from 19 July, it will “no longer necessary” for people to work from home and the Government guidance on working from home will be lifted.

For many employers, the future of their office space and the wide spectrum of their employees’ views about continued homeworking have been pertinent matters for consideration and decisions now need to be made. But what legal issues need to be factored into those decisions?

Employment law issues

The starting point always is to look at the contract of employment between the employer and the employee. What does the contract of employment state in relation to any right to attend a particular workplace. Most likely it will be the office location that the employee worked at before the pandemic and to which the employer can require employees to return to working provided always that it is a safe place to return to.

If employees have a contractual right to work at a particular office location, agreement can be sought with them to retain existing Covid homeworking arrangements or perhaps to move to a hybrid approach; for example, working two days per week from home and the balance in the office. If any such particulars are changed, the employer at law must issue a written statement of the changes.

Some employees will want as full a return to the office as possible while others will prefer as much time working from home as possible. If, on average, an employer needs the workforce working three out of five days in the office, individual employees may be more likely to agree if some can work from home on just one day while others have three days at home. So it is best to look at the individual circumstances of employees when seeking to get agreement on changes to the place of work.

Employers should also be mindful that a flexible working request from an employee that involves a homeworking element needs to be looked at in light of an organisation’s recent experience of homeworking, as well as that of the wider work force. Tribunal claims arising from refusals of flexible working requests will be more difficult to defend in the future given the knowledge that, with the right technology in place, homeworking was possible and indeed extremely successful in many workplaces.

Employment policies and procedures

If a change to permanent homeworking or hybrid working is agreed to by employees or imposed by employers who have the contractual right to do so, then the employment policies will need to be revised. For example, expenses policies may need to be revised to reflect a context in which office supplies are being purchased by employees themselves. Is the employer going to contribute to heating, lighting, broadband and telephone costs to enable the employee to work exclusively from home? Will an employer insist on supplying or approving all IT equipment used at home? Particular regard will need to be paid to IT policies and procedures to ensure that they are fit for purpose.

Data protection and confidentiality

All employees have an implied duty under their contract of employment not to disclose confidential information or use it for any purpose other than the employer’s business. All businesses have data protection obligations under GDPR.

The Information Commissioner’s Office (ICO) has highlighted the necessity for employers to ensure that employees are trained in what is and is not an authorised use of data; to follow their organisation’s policies, procedures and guidance; to avoid ‘the temptation to do things in a way you think is more convenient, such as sending emails through your personal account or using the video conferencing app that you use with friends for work calls’.

The ICO recommends only using technology approved by the employer for handling personal data; being aware of confidentiality when holding conversations or using a screen when other individuals are in the house; taking care with print outs – particularly where confidential waste disposal is impossible; not mixing work data with personal data; locking work data away where possible; and keeping software up to date.

A homeworking policy needs to be fit for purpose and it is crucial that it addresses such issues as what happens when an employee is on holiday with particular regard to the degree of security of the employee’s home.

ICO guidance also recommends that employers review their data handling practices and procedures and to carry out a data privacy impact assessment of the data protection implications of employees working from home. Homeworking policies should emphasise a requirement to work from a secure space at home and not, for example, in a cafe or park.

Health and safety

Employers have of course the same health and safety responsibilities for homeworkers as for any other employees and they are responsible for their employees’ welfare, health and safety, ‘so far as is reasonably practicable’; and must conduct suitable and sufficient risk assessments of work activities carried out by employees, including homeworking.

Risk assessments carried out in the context of the Covid period probably need to be revised for post-Covid long-term home working.

Health and safety concerns may also arise in relation to physical matters; for example, adequate lighting, desks or chairs; and also in relation to mental health and isolation from work colleagues. The Health and Safety Executive provides guidance for employers on both homeworking and lone workers and it is worth visiting their website.

Conclusion

Whatever form post-Covid working takes be it employees working from the office, at home or a hybrid of both, it is a good time to review the contracts of employment and policies and procedures to ensure that as employers you are legally compliant and that your employment policies and procedures are robust and fit for purpose.

If you have any queries in respect of the matters raised in this article please do not hesitate to contact Carmel Sunley of Sunley Solicitors Ltd

E: carmel@sunleysolicitors.co.uk