Homeworking won’t be for every business but if you’ve reflected on the last five months and decided that it’s right for you, what are the practical and legal considerations you need to have in mind?
This article covers the contractual provisions you will need to make, cyber security and GDPR, and how to create a safe homeworking environment for your employees.
If you’re still in the thinking stage and haven’t quite decided yet, please read our other homeworking article which includes some questions you can ask yourself.
Contractual provisions for homeworking
Do your contracts of employment need to be updated?
You need to make sure that they are fit for purpose and reflect the reality of the arrangement in place.
Key points to consider include:
Place of work
Is the employee’s home going to be their permanent place of work? Will you want a contractual right to require them to attend an office at certain times or for certain events?
Hours of work
Consider if set hours are still required. Generally, employers have a responsibility to ensure that employees are able to take rest breaks but that’s much harder to monitor when you’re not physically in the same place. You will need to place greater responsibility on employees to take and manage their own breaks.
Equipment and insurance
Are you going to be providing any equipment for your employees? If so, whose responsibility is it to insure it? See further below on the other considerations that can arise in relation to the provision of equipment.
Are there any restrictions on your employees’ home insurance that would prevent them from working from home on a permanent basis?
Confidentially and data protection
Your contracts hopefully already include provisions around confidentiality and data protection but they are especially important when working from home. Make sure they are sufficiently robust for this different way of working (see further below on this too).
Right to enter
You will want an express right to enter your employees’ homes. This is important for carrying out health and safety risk assessments (see further below) but may also come into play if you need to recover any equipment provided to your employees at any point.
Expenses
Will you be reimbursing employees for expenses incurred when working from home or if you require them to travel into the office periodically? If so, will this be on a payment of receipts basis or a flat contribution to utility bills and other costs? Either way we recommend that you seek advice on any tax implications of paying these expenses.
Aside from your contracts, we would also recommend that you have a homeworking policy in place. Some businesses will already have had these but they may have been drafted from the perspective of temporary or occasional homeworking only. Make sure that your policy is suitable for those who are working from home on a permanent and regular basis too.
Homeworking securely
Compliance with the GDPR does not stop for a pandemic and homeworking brings about all manner of potential data protection considerations including:
- Encryption of computers and the data on them;
- Keeping anti-virus software up-to-date;
- How can employees securely store hard copies of documents they are working on and how will they destroy them (home shredders are not the answer as they do not destroy the data to a sufficiently high degree);
- Video conference security (whilst we are all now aware of the benefits that platforms like Zoom, Google Meet and Microsoft Teams can bring to keep in touch with employees and carry out meetings that would otherwise have happened in person, there are security considerations that you will need to have in mind);
- The layout of your employee’s home and whether they can work privately without being overheard; and
- What policies you have in place to require employees to limit access to their computer (aside from data protection issues there have been a spate of accidental uploads to social media from business accounts).
The ICO have published 10 practical tips for how work home securely which you can find here. Our head of Intellectual Property & IT, Ben Travers, has also written an article on Zoom and the Legal Points to Consider.
It is also important that your data protection policies are updated. You should carry out a privacy impact assessment (PIA) to consider the security of data when working from home.
For businesses that have not sorted their GDPR fundamentals, we still recommend you still complete a PIA but, to help on your journey to compliance, our IP & IT team are also providing a free data mapping tool and guidance note.
Your responsibilities in terms of Health and Safety
As an employer you are under an obligation to ensure your employees’ safety, not to expose them to risk (actual and potential) and to do all you reasonably can to set up a safe system of work and ensure it is implemented. This duty of care towards your employees extends to when they are working within their own homes, at least insofar as the work station/desk area is concerned. You should seek specialist advice from health and safety professionals to assist with your risk assessment and advise you on your obligations.
Some practical steps you can take to assess homeworking stations:
- Carry out an overarching risk assessment in terms of homeworking which will identify general risks and the measures to limit them;
- Share your risk assessment with your employees;
- Task your employees to carry out their own assessment if appropriate:
- Provide your employees with an assessment to complete;
- Encourage them to send in photos or a video of their working area, with an explanation of any difficulties;
- Check and review the employee’s assessment; and
- Consider whether any of your employees are disabled or pregnant such that specialist assessments should be carried out.
The Health and Safety Executive has a raft of useful tools for assessing home working which you can find here.
Provision of homeworking equipment
You should check your contracts and handbook to see if you have any policies already in place regarding providing equipment. Outside of existing contractual provisions and policies there is, in principle, no obligation to provide equipment but your employees might expect it and a failure to do so can breach other legal obligations and carry risks.
Questions to consider:
- Is any specialist equipment required on the grounds of health and safety?
- Would the provision of the equipment be a reasonable adjustment for someone who is disabled?
- Can the employee do their job without the equipment? If not, can they afford to kit themselves out and is it reasonable to instruct your employee to do so?
- If your failure to provide the equipment results in your employee being unable to work, are you breaching mutual trust and confidence (this can lead to a constructive unfair dismissal claim)?
- Would failing to provide the equipment breach your data protection obligations?
What next?
Homeworking does require you to review your existing processes and develop new policies to adapt to the new way of working and limit legal risk. Whilst this might seem to be a daunting task, companies are reporting benefits to increased homeworking and it can reduce your overheads in the long term.
Research from King’s College London has revealed that 86% of employees believe homeworking should be allowed until a vaccine is found and even aside from Coronavirus, this desire for greater flexibility has been gathering speed over recent years. We see this as an opportunity for businesses to show themselves as progressive and engaged and in doing so, to mark themselves out as an employer of choice.
If you would like to discuss homeworking further please do get in touch.
This article is part of our Adapt & Thrive initiative.
