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14/04/2021

Working from home - the big debate

1. Should we let employees work from home?

  • Advice on working from home has changed several times since the start of the COVID-19 pandemic. The current position in England is that employees should work from home where they can. Employers should take "every possible step" to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.
  • Where full homeworking is not possible, employers are encouraged to adopt a mix of home and office-based working.
  • In the COVID-19 Spring 2021 roadmap, published on 22 February 2021, the government advised that the current position on working from home where possible will continue until step 4, which will commence no earlier than 21 June 2021.
  • Where people cannot work from home, including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing, they should continue to travel to their workplace.
  • An individual does not need to be classed as a critical worker to go to work if they cannot work from home. A return to the office may be appropriate for workers facing mental or physical health difficulties, or those with a particularly challenging home working environment.
  • From 1 April 2021, clinically extremely vulnerable employees in England and Wales who cannot work from home can attend the workplace. However, they should continue to work from home where possible. Employers should take reasonable measures to minimise the risk to employees.
  • It is understood that the government considered legislating to give employees the right to work from home where they feel it is unsafe for them to return to work.

2. Can we make it compulsory for employees to work from home?

  • If there is already an established requirement to work from home where instructed to do so, there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.
  • Even in the absence of an express term, it may be argued that requiring employees to work from home is within the scope of a reasonable management instruction, particularly if any additional costs are borne by the employer.
  • If not, imposing home working arguably constitutes a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay.
  • There are alternative methods of changing terms and conditions of employment, but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.
  • Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place.

3. Are there any special categories of employees we should allow to work from home?

  • All employees should be allowed to work from home where it is possible for them to do so.
  • Employers should in particular consider the position of any clinically extremely vulnerable staff. While shielding was paused in England and Wales on 31 March 2021, clinically extremely vulnerable employees remain advised to work from home where possible.

4. Are there any homeworking health and safety or other issues we should consider?

  • Yes. An employer is responsible for an employee's welfare, health and safety, "so far as is reasonably practicable" (Health and Safety at Work etc Act 1974). Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk. The government has identified categories of clinically vulnerable and clinically extremely vulnerable people and particular attention should be given to allowing them to work from home. The ACAS, Working from home guidance summaries the issues to consider, including:
    • Supporting employees to adjust to homeworking.
    • Employers and employees' health and safety responsibilities, including looking after mental and physical health.
    • Equipment and technology.
    • Ongoing assessment of homeworking systems and arrangements.
    • Setting clear expectations.
    • Keeping in touch.
    • Pay and terms and conditions of employment.
    • Working from home and childcare.
    • Expenses.
    • Insurance, mortgage or rent agreements.

5. Can an employee be permitted or compelled to work from home during self-isolation?

  • Self-isolation for certain COVID-19 related reasons is deemed incapacity from a statutory sick pay perspective.
  • However, this only applies where, by reason of that self-isolation, the employee is unable to work. It does not prevent an employee from being permitted to work from home and continue to receive full pay if they are well enough, and the appropriate facilities are in place for them to do so.
  • Where an employer has the contractual right to compel an employee to work from home in normal circumstances, it is likely that they could assert that right in the context of self-isolation (assuming that the employee is fit to work and has not asserted another right such as the time off to care for a dependant). Where the employer does not have the contractual right to impose home working then it is unlikely that the employer could force the point.
  • However, given that the employee would only be entitled to SSP (or, arguably, nil pay if it could be argued that they are not "unable" to work if the facility to work from home is provided) it seems likely that most employees will agree to do so.

6. What are the data protection implications of the majority of employees working from home?

  • For many employers, the pandemic has meant that a large proportion of the workforce is working from home, and some predictions suggest that this will be the case for the foreseeable future.
  • From a data protection perspective, this means that there may be additional or different data security issues to consider.
  • The ICO confirmed in March 2020 that it would take a pragmatic approach to enforcement in light of the pandemic. However, employers remain bound by the DPA 2018 and the UK GDPR and should not be complacent.
  • Some of the data security issues that may be more likely to arise where employees are working from home on a full time and long-term basis include:
    • Storing and accessing physical personnel records or other employee data at home. Employees may print personal data at home and not have the facility to dispose of it securely.
    • Sharing hardware with other members of the household which increases the risk of unauthorised data transmission. This risk can be minimised by providing employees with the hardware that they need and requiring that no one else accesses it.
    • An increased reliance on email to communicate data which would ordinarily be discussed verbally.
    • An increased risk of data breaches through the use of unauthorised video calling applications, as well as confidentiality issues if other members of the household can overhear the data being discussed.
    • Increased risk of data breaches if personal devices are being used and data is not properly encrypted or stored in a secure way.
  • Employers may also need to consider whether their information security and homeworking policy needs to be revised and expanded to reflect the increased reliance on homeworking.
  • Employers may also need to review their data handling practices.
  • Employers should also carry out a data privacy impact assessment of the data protection implications of employees working from home.

7. What are the implications if an employee requests to work from home outside the UK?

  • The specific implications of an employee asking to work remotely from home (or being furloughed) from a foreign jurisdiction will depend on the particular circumstances, including the contractual position and the nature of the employer's business. When considering whether or not to grant such a request, employers will need to consider each case on its facts, taking account of the reason for the request and any adverse implications of a prolonged overseas stay.
  • From an employment perspective, there will be a number of issues to consider. These will range from statutory employment rights issues to immigration, tax and social security, data protection and insurance issues.

If you require employment law advice contact Irina Polyakova on 01484 821 300 or at irinapolyakova@eatonsmith.co.uk