COVID19 Employment Law Update #8
COVID-19 EMPLOYMENT UPDATE
WHY EVERY BUSINESS SHOULD BE REVIEWING
ITS HOMEWORKING POLICY
There has been much speculation in recent days about the imminent easing of restrictions on movement and gathering imposed by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350).
In our working lives, most employees have been expected to work from home where possible during the Covid-19 crisis. In this article Lisa Hatch argues that every business should be reviewing and updating its Homeworking Policy since, even after restrictions are lifted, Covid-19 is likely to cause a permanent shift towards home working.
According to the Office for National Statistics, from January to December 2019, of the 32.6 million people in employment in the UK, around 1.7 million people (or 5% of the labour force) reported working mainly from home, whilst around 4.0 million reported working from home at some point in the week. Homeworking was more prevalent in London, the South East and the South West than the rest of the UK. Fast forward 5 months, and for most of us who have not been furloughed, homeworking is now the new norm.
On 26 March 2020 the UK entered an “emergency period” and since then our rights of free movement and gathering have been restricted under the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) (the “Regulations”). As far as work is concerned, the relevant Regulations provide that:
during the emergency period no person may leave the place where they are living without reasonable cause, which includes the need to travel for the purpose of work where it is not reasonably possible for that person to work, or to provide those services from home (Regulation 6); and
during the emergency period no person may participate in a gathering in a public place of more than 2 people except where the gathering is essential for work purposes (Regulation 7).
Permanent shift towards homeworking
Some employees will inevitably be reluctant to return to the office once the current restrictions are eased or lifted. Fears and concerns about a second wave of the virus, and infection from commuting on public transport, sitting in communal workplaces, and dealing with the public, may not abate quickly. Employees who are disabled or have additional caring responsibilities for children or adults could find themselves in a particularly difficult situation.
Some businesses will have found the Covid “forced homeworking” experiment enlightening and will now be considering reducing office space and reducing overheads in the longer term. However post-lockdown, not all employers will want their workforce to remain home-based, even though employees may find it hard to understand why they cannot continue homeworking where the experiment has run smoothly over the past 7 weeks.
Requests for homeworking
Where employees make a request to work from home, employers will need to consider whether the request constitutes a statutory flexible working request under section 80(F)(1) of the Employment Rights Act 1996. However, where the request is made upon grounds of disability or health and safety, for example where employees are disabled or shielding or living with others who are shielding, additional legal duties may arise, including the duty to make reasonable adjustments under s.20 of the Equality Act 2010.
Although there is no need to include it in the actual policy, the CIPD has a useful (non-Covid related) Homeworking questionnaire which may be completed at the start of any homeworking request and used to gauge at a glance the relevant personal issues in any individual case.
Why do employers need a Homeworking policy?
A good Homeworking Policy is a useful tool for employer to ensure consistent decision making on homeworking requests, and to show employees how their employer will respond to any policy breaches. In short, it sets clear parameters and expectations and should hopefully reduce the risk of disputes further down the line. Although some employers (especially in the public sector) may already have a Homeworking Policy in their Staff Handbook, a very large number will not. In many cases, employers threw together temporary homeworking arrangements rather hastily just prior to lockdown.
With the ease of lockdown imminent, businesses should consider introducing a Homeworking Policy, or reviewing existing (temporary or permanent) policies and adapting them to the new Covid landscape. As long as any current policy has not been incorporated into contracts of employment, it should be possible for the employer to change them unilaterally.
This begs the question, what should be included in a Homeworking Policy? While every policy should be tailored to the individual employer, at a minimum policies should probably have provisions on the following:
Suitability for homeworking
Businesses will need to consider in each case whether the particular role is suitable for homeworking. Relevant considerations are likely to include whether it is a stand alone role, a supervisory job, how much attendance in the office Is reasonably required, the revenue responsibility of the role, whether close supervision is required, what sort of equipment and set-up is needed, and whether security issues can be effectively managed.
Hours of work
Hours of work should be clear. They are usually set out in the main statement of terms and conditions of employment, or can be agreed with management.
Equipment and workstations
Employers should consider what equipment they may need to provide for the homeworker. This may include computer equipment, a business telephone line, an account with a service provider, stationery, a suitable workstation. Any equipment should remain the property of the employer and in the event of the employment terminating, employers will want to ensure they can recover their equipment from the employee’s home.
Health and Safety
It should not be forgotten that homeworkers are subject to the same health and safety requirements as workers based on an employer’s premises. Both employees (who are usually lone workers) and the employer have a duty to assess and reduce the risks lone working presents. The employer should consider how it can carry out risk assessments in order to comply with its obligations under health and safety legislation.
Insurance and restrictions
Businesses should consider insuring company property provided to the homeworker and investigate whether the homeworker’s household insurers should be notified of the homeworking arrangements.
Employers should also be mindful that in some cases, homeworking may also breach restrictive covenants, planning restrictions or mortgage conditions.
Confidentiality and data protection
Employers should ensure that homeworkers comply with their obligations with regard to confidentiality and data protection and use of the employer’s systems and networks.
Employers will want to consider if homeworkers may be required to attend the office from time to time, for example for meetings or training, or to cover for office based staff during absences.
Businesses will want to consider whether they reimburse the travel costs for any business trips to the office.
Monitoring and review
Employers should consider keeping their homeworking arrangements under constant review.
This list is not intended to be exhaustive but to give some useful headline considerations.
Covid-19 has challenged conventional wisdom on where many employees should carry out their work. Although the Government’s requirement for us to work from home during the Covid emergency period may be eased soon, the health fears and concerns thrown up by the virus are likely to remain with us for the forseeable future. Acas suggest that employers and employees should be ‘practical, flexible and sensitive to each other’s situations’ about homeworking. Whilst this is no doubt good advice, a well drafted Home Working policy can set important boundaries and guidelines for employees too and help reduce misunderstandings, disagreements and even potential claims further down the line.
If you would like any further information on Homeworking Policies or any other employment related issue arising out of Covid-19 or otherwise, please contact Lisa Hatch or Ian Hogg at firstname.lastname@example.org or on 0207 936 3030.