Homeworking, or agile working, is not a new concept. However, in 2020 many employers and employees were forced to adapt to this way of working, overnight. The Office for National Statistics (“ONS”) reported that in April 2020, 46.6% of UK employees worked from home. A YouGov survey based on data collected between 8 to 11 May 2020, suggests that 20% of employees had gone from never working from home before, to doing so on a full time basis.
The reality is, some businesses have welcomed the move to home working with open arms, with others keen to make a return to the office.
We will look at considerations for employers within this article, namely; (1) benefits and challenges of home working, (2) employee’s right to request flexible working, (3) employment contract terms, (4) health and safety, and (5) data protection / compliance.
Benefits and challenges
Many employers have had feedback from employees suggesting they have experienced several benefits of home working, despite the current COVID-19 pandemic, including: no commute (saving both time, money and reduced stress), having more time with their family, a work/life balance is easier to maintain, the ability to connect with teams virtually has streamlined many processes, along with increased productivity.
Employers appear to be in two minds as to whether productivity has been affected as a direct result of home working. According to a Whereby survey, 53% of employers have seen an increase in productivity. Other employers believe that home working has resulted in a decrease in employee productivity. The April 2020 ONS survey on coronavirus and homeworking in the UK indicated that 34.4% of employees who worked from home in a reference week in April 2020, worked fewer hours than usual, with 30.3% working more hours than usual. That said, hours are not always linked to productivity and the survey data may have been affected by other effects of the pandemic, such as employees having to take on home-schooling and caring responsibilities, along with the business dealing with changing customer demands and the economic impact of the pandemic.
Employers who are concerned with their employee’s productivity may be considering or may have implemented remote employee monitoring software. The first thing to note is that covert monitoring to assess productivity is unlawful. It is only acceptable in very limited circumstances, such as serious criminal investigations where the intention is to get the police involved at some point. Any other type of monitoring will need to be overt.
It is also important to have a clear and readily accessible monitoring policy so that employees understand exactly how they are being monitored and the consequences of it. The focus should also be on prevention rather than detection so organisations should spend more time promoting productivity and good working practices rather than trying to catch people out.
In order to mitigate the risk of an employee working from home and not being around the physical security measures of the office, employers may believe there is a justification for using software that can log key strokes/mouse movements / capture screens or log how often people spend on certain applications etc. This is likely to be disproportionate however and employers are unlikely to have legal grounds to justify this type of monitoring.
Employment contract terms
A Whereby survey dated June 2020 found that 82% of UK businesses plan to stick to current remote working arrangements implemented during lockdown. With this in mind, it is important that employers implement proper provisions for homeworking in new and existing employment contracts.
For employers who, before the pandemic, did not permit homeworking but have now adopted this way of working, they may be able to unilaterally vary the existing contracts; if the contract permits. There may be a specific or general flexibility clause in the contract.
If the contract does not permit you to vary the contract unilaterally, an employer’s best option would be to seek the consent of their employees; providing consideration for the change.
If the employee does not consent, we believe the employer would have two options: (1) consider whether the employee has impliedly agreed to the change by continuing to work within the “varied terms” you are looking to make, without the employee making it clear to you that they are working under protest, (2) look to terminate the employee’s contract and offer continuing employment, with the terms you are looking to implement.
Employers who have, or are looking to incorporate homeworking to their everyday practice, should consider whether each element of their current employment contract is sufficient to reflect their expectations.
Right to request flexible working
According to a survey carried out by the CIPD in April 2020, 75% of employers expect demand for homeworking to continue once restrictions are lifted. Briefly, any employee with at least 26 weeks of continuous service can make a request for flexible working provided that they have not made any other flexible working request within the last 12 months. This request can be for any reason. The result of this request will be to make a permanent change to the employee’s working pattern.
It is sensible for an employer and employee agree to a trial period before flexible working arrangements are confirmed; especially where an employer is unsure as to how the change will work in practice. This should include agreeing the length of the trial period and how success or failure will be assessed. The employer should ensure that it reserves the right to ask the employee to revert to normal working practices at the end of any unsatisfactory trial period. If a trial period is proposed but the employee refuses to agree to it, the employer’s only option is to accept or reject the request by reference to one of the eight reasons set out in the Employment Rights Act 1996.
An alternative option, is to implement an agile or home working policy. Some employers may already have an agile working policy in place, which usually includes a set of guidelines for employees to work within. This allows employees to have a more flexible approach to working patterns on a week by week basis (whilst staying within the scope of the guidance).
As and when the government’s guidance changes to re-introduce office working, employers are likely to see a rise in flexible working requests. Employers may wish to consider the less formal route, as above, in adopting an agile working practice. There can be benefits to taking this approach, however, it is important for employers to develop a guidance that keeps consistency throughout the company.
Health and Safety
The Health and Safety at Work etc Act 1974 imposes a general duty on employers to ensure the health, safety and welfare at work of all of their employees; as far as is reasonably practicable. In addition to an employer’s statutory duties, there is also a common law duty of care to provide employees with a safe system of work. It is therefore recommended that where employers have adopted homeworking within their business, they have a health and safety policy which addresses homeworking specifically.
When it comes to risk assessments, employers have the same health and safety responsibilities for homeworkers as they would for office workers. The Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) states that an employer must:
- identify hazards in the workplace that could cause illness or injury,
- determine the risk level (how likely it is that someone could be harmed and how seriously), and
- take action to eliminate the hazard or, if this is not possible, control the risk.
The HSE has stated that there is no increased risk from display screen equipment work for those working at home temporarily, compared to an office environment, therefore, employers are not required to carry out home workstation assessments. It is advised however, that employers provide their employees with advice on how to complete their own basic assessment at home. If an employer is looking to implement homeworking within in their business as part of a longer term plan, they should look to establish a system for carrying out risk assessments to ensure their employee’s homeworking environment is safe.
Should an employee have an accident whilst working at home, it must still be reported to their employer under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (SI 1995/3163). Employers should therefore have a clear procedure should their employees need to report an accident.
Data protection / Compliance
Home workspaces were created very quickly and some employees will be sharing workspaces with others; which is not ideal for organisations as it could give rise to confidentiality and data protection issues.
Data controllers (employers) find they now have less control over data leaving the office. They must however, ensure that data is properly safeguarded. The ICO have produced guidance on this, which includes a checklist of the sort of things that need to be taken into account (for example, fishing threats/ cyber security considerations) see link here: https://ico.org.uk/for-organisations/working-from-home/
The ICO state that employees should be trained on privacy issues. They also acknowledge that work from home environments were set up quickly but software choices should be reviewed where time permits and made more secure.
