With today marking the start of the second COVID-19 Lockdown in England more people are being required to work from home.
Prior to the COVID-19 pandemic, many businesses were adopting more agile ways of working, including allowing employees to work from home. The pandemic has accelerated these changes and has seen businesses that previously didn’t contemplate allowing staff to work from home having to quickly adapt.
There are many issues for employers to consider when implementing home working on either a temporary or permanent basis.
In our homeworking series we are taking a look at these issues from a legal perspective to help you facilitate the change to home working and make it as smooth and risk free as possible, with the aim of avoiding costly legal claim and safeguarding your reputation.
In this blog we answer some of the questions employers are asking about home working.
Do we need to update employment contracts for home-workers?
Potentially, if you envisage that work will be performed in whole (or part) from home in the future. Employers are legally required to specify the employee’s place of work (section 1, Employment Rights Act 1996).
Changing an employee’s place of work will amount to a contractual variation requiring consultation with the aim of seeking employee agreement. Where this applies to 20 or more employees at a single establishment, collective consultation obligations requiring minimum periods of consultation and employee representatives may be triggered and specific advice should be sought.
Careful thought should be given as to how the place of work is drafted and how homeworking could impact other rights and obligations. For example, most employers will want to require home working employees to attend the office from time to time for client or team meetings, for training and internal procedures such as appraisals.
Similarly, you might seek to reconfigure senior management contracts to ensure that they remain competitive. Are car allowance clauses likely to be as appealing in future? Might you consider wrapping up car allowance provisions into basic salary? Such action might make packages appear more attractive.
Do we need to pay employee expenses when they work from home?
You will need to revisit expenses provisions and policies. The extent to which you offer cover will be an exercise in balancing business discretion and existing contractual rights.
You will need to consider covering travel expenses to attend the office, energy, telephone and broadband costs. Note that depending on the nature of the employee’s employment, employers may be under an implied duty to meet an employee’s out of pocket expenses incurred in course of their employment.
We have seen employers offering vouchers and contributions towards safe office equipment to assist employees with their move to homeworking.
Do we need to take additional steps to ensure Health and Safety compliance for home workers?
The Health and Safety at Work Act 1974 provides that an employer is responsible for an employee’s health, safety and welfare so far as is reasonably practicable.
In the case of employees who work from home, you will need to ensure compliance by providing risk assessments that highlight any measures required to address risk. Compromise was key throughout the spring and summer this year, but on an ongoing basis you will be expected to audit and assess how employees are working and whether provision needs to be made of desks, chairs, laptop risers and other IT equipment as well as sufficient internet and telephone line access. You should also check insurance policies to be clear of the extent to which incidents or equipment at home will be covered and protected.
Health and safety policies should be revisited to ensure appropriate mechanisms are provided for reporting accidents or injuries at work that occur at home and employees should be asked to confirm that their home mortgage/lease/insurance provisions do not prevent them from working from home.
You should consider employees on a case by case basis and be especially mindful of your obligations to disabled employees under the Equality Act 2010 to make reasonable adjustments. Reasonable adjustments (and discrimination law generally) can be a complicated area to navigate so we would recommend that you seek advice from an employment lawyer at an early stage.
Will we need to change our management and supervision techniques?
There is an ongoing question surrounding how supervision might effectively be managed as more employees work from home.
Line Managers regularly checking in with their team members is key. Contact in any form has been shown to have a positive impact on employees’ wellbeing and this will also likely have an impact on performance.
As organisations move to home working, the tendency is for more communication to take place via email. Whilst some of this may be unavoidable, organisations should consider other ways of replicating, as far as possible, office communication so as to try and pick up on the nuances of people’s wellbeing and body language. Good methods of doing this may be video team calls and check ins with individual team members (formally or informally). These will help to keep good lines of communication open between line managers and their teams and will make performance management easier as well. Managers will be required to take a more proactive approach to communication with their team to maintain employee engagement, motivation and productivity.
New performance management goals and targets might be implemented. The key is to ensure that objective measures are adopted. Ultimately, however, management and supervision requirements are likely to differ between organisations and as such you will need to seek specific advice before compiling a reliable management and supervision plan.
How might grievance and disciplinary matters be impacted?
We anticipate that some traditional disciplinary matters might decrease (e.g. theft) whilst some might change as there is a move to homeworking, e.g. bullying and harassment that might have taken place in person may now occur online and some may increase, e.g. intentional confidentiality breaches
The disciplinary process will be as important as ever as we move to homeworking. The important difference is that more hearings may take place virtually. You will need to ensure that any virtual disciplinary or grievance hearings are dealt with in a fair and reasonable way. ACAS has introduced Guidance on Disciplinary and grievance procedures during the coronavirus pandemic and it is well worth a read. Issues that could arise may include employees’ access to technology to deal with video hearings, employees being “coached” from off-screen during disciplinary hearings, a potential increase in recording video calls and reasonable adjustments for employees with disabilities.
The subject of grievances might change including complaints of intentional isolation, wellbeing issues unfair allocation of work, or general confusion surrounding management decisions (if not properly communicated to the workforce) might become more common.
Who should I contact if I need more advice?
It is difficult to predict exactly how the workplace will change as we move closer to 2021 and beyond. However, it is clear that employers are starting to embrace new ways of working.
In the event that your business would like to discuss any of the above with us please contact a member of our Employment team or, where the focus is health and safety, our Regulatory team.
In the meantime, we wish you and your business the best as we head into another lockdown.
