The Covid-19 restrictions have shone the spotlight on agile working in a way never before seen.
Pre-Covid, many organisations were exploring how they might be able to create a more agile workforce but found too many hurdles in the way. Being forced to have so many people working from home has shown organisations what is possible but has also highlighted to employees some of the benefits of working from home (although recognising that it has not been easy for some). Whilst the message from the Government is now changing towards encouraging a return to the workplace, we anticipate that many organisations will look to implement a hybrid solution. This will enable them to manage social distancing in the workplace and respond to a change in employee thinking, exemplified by a recent YouGov survey that found 80% of workers would prefer to continue working from home at least one day a week.
Now is the point where employers are considering how the emergency home-working arrangements which were put in place back in March ought to be formalised. In this article we consider some of the key issues for employers to think about which we have been discussing with clients.
- Place of work / Change in pay / Expenses
The critical question here is whether homeworking is going to be allowed or required as it obviously makes a difference to the place of work clause in contracts of employment.
With some organisations closing their offices, the place of work will have to be home and contracts of employment would need to be amended to reflect this. Employers should be aware of the potential for arguments that a workplace closure gives rise to a redundancy situation, which those who don’t want to work from home may prefer as an outcome.
For employers who want a hybrid arrangement, the issue is whether to amend contracts to include a right to work from home (possibly subject to some caveats) or to continue with having the office as the contractual place of work and home-working approved on a discretionary basis. In the latter scenario, employers should note that employees may submit a flexible working application to formalise a working from home arrangement.
Employers who are retaining their office space should reserve the right to require employees to attend the office, for example for meetings or because home-working is not working out.
Employers will want to set a clear position about the reimbursement of travel expenses on the days that employees attend the office and increased utility costs from working at home. In due course we may start to see pay decisions being impacted; the amount of cost of living increases may be reduced if a major cost for many (i.e. commuting expenses) is no longer being incurred, and local weightings may be removed if no longer relevant.
- Confidentiality / Data Protection
Undoubtedly, adopting a more agile way of working is likely to give rise to a number of issues pertaining to confidentiality and data protection. Interestingly, a recent survey of 200 UK businesses carried out by Censuswide for Centrify has shown that 39% of those businesses had dismissed employees for breaching data protection/confidentiality policies since the start of Covid-19.
If not done already, employers should run a risk assessment on the particular data protection, confidentiality and information security risks presented by home-working and then identify the safeguards that need to be put in place to mitigate those risks. Existing contractual and/or policy provision may need to be strengthened, but at the very least employees should be directed to what is already in place and given practical advice and/or training on the steps that can be taken to minimise the risk of breaches (i.e. password protect devices and locking them when not in use; secure storage, transport and disposal of documents; and telephone etiquette if others are also at home). It would be a good idea to require each employee to do a critical assessment of the specific risks presented by their own working arrangements so that they are aware of them.
Employers must ensure that adequate provisions reflect who will be responsible for providing equipment for the purposes of carrying out work at home. Whilst an employer is not under an obligation to provide any equipment (disability reasonable adjustment issues aside), it is recommended that they do in order to ensure, as far as is possible, that they can adequately monitor the devices for security purposes amongst other things. Where work equipment is provided, there is an obligation on the employer to ensure that it is suitable, maintained in good working order and inspected regularly. If however employees are required to use their own personal devices, ensure that contracts of employment sufficiently address matters such as who will responsible for ensuring any maintenance and repairs, including who will bear the costs, and that adequate security software is installed and kept up to date.
It is also recommended that employers check with their insurance providers how they might be able to strengthen any terms of cover to deal with homeworking arrangements. This may include considering whether adjustments need to be made to cover damage of equipment outside of work premises and ensure that any damage at home does not invalidate their current policy or cover.
- Health and Safety
An employer still has a duty of care towards its staff working from home and must therefore ensure that their health and safety is protected as far as is reasonable. Particular issues will be: how to carry out health and safety risk assessments, how to monitor employee wellbeing (including those employees who are unable to switch off from work because they don’t have the same boundary between work-life and home-life anymore), first aid and accident reporting.
- Right to Enter
Employers may wish to consider inserting a provision into contracts to provide them with a right to access employees’ property at reasonable notice to inspect their workstation and carry out a risk assessment to monitor health and safety, security issues, but also in order to service, maintain and recover any company equipment in the event of a termination. This will however not grant an automatic right of entry in all cases if the employee is not the owner/tenant, as their consent will still be required.
Measures to put home-working on a more formal footing for employers and employees who want to adopt it for the longer-term should not be controversial to introduce. A lot has been learned from the arrangements that were thrust upon many in March. Previous barriers to homeworking, such as managerial lack of trust in what employees are doing if not visible has, in the most part, been proven misplaced and there is now a much greater openness to embracing it and making it work for the organisation and its employees. However it isn’t the right solution for everyone and it is important to recognise what might be lost by not having everyone together in the same place. But for those who do want to embed it into their working arrangements, take the opportunity to listen to your employees at all levels about how the experience has been, how they would like to work going forwards, where more support might be needed etc. so that what is put in place has the best chance of delivering a successful experience for employer and employee. Bringing all relevant rules together into a single place i.e. a Homeworking Policy would be one idea to maximise success so that everyone is clear of the expectations and responsibilities.
If you want to discuss either the strategic or operational issues arising from home-working then please contact any member of the team.