Esther Smith, employment partner at UK law firm TLT, discusses what obligations employers have whilst their staff work from home
Employers across the UK have been faced with the need to swiftly mobilise their workforce to work from home, in response to government guidance. This unprecedented activity has raised urgent questions from employers wanting to understand their obligations from an employment law perspective, to ensure they’re providing the right advice and implementing the necessary tools to assist employees during the disruption.
Addressing the practicalities of working from home
The first and most pressing issue is likely to relate to the practicalities of providing equipment. If as an employer you do not have a sufficient quantity of laptops, are you able to ask employees to use their own equipment at home? Given the circumstances, this is likely to be a reasonable request, meaning that any unreasonable refusal by an employee to do so would entitle you to treat that as a misconduct point under your disciplinary procedures.
In terms of employees providing office facilities at home – for example, internet access, phone line and office space – these costs are likely to be fixed and therefore employees do not need to be reimbursed. Some employers may wish to make a contribution towards extra heating and lighting costs, but it could be argued that these additional costs are offset by any commuting savings.
Assuming that employees have the necessary equipment to work from home, you may wish to check whether any mobility clauses in your employment contracts are sufficiently widely drafted to allow for home working. However, in the absence of specific contractual provision, the current emergency situation is likely to mean that a requirement to work at a different location will be a lawful and reasonable instruction and, in any event, employees are likely to agree.
If you have a home working policy, this should be circulated to staff, along with any other practical information about remote access and contact details for the employees’ team. In response to the ever-changing picture for the UK’s workforce, employers will need to exercise flexibility in relation to existing policies and procedures – for example, in the wake of school closures, employers may need to be more accommodating of parents who are working alongside children being home, even though, in normal circumstances, this would not be acceptable.
Concerns and obligations
An employer’s obligation to protect employees’ welfare, health and safety “so far as is reasonably practicable” still applies, even if they are still working from home. Given the numbers of employees likely to be suddenly home working, undertaking individual risk assessments at each employee’s home is unlikely to be feasible. Alternatively, you can ask employees to complete online desk-based risk assessments and / or ask employees to confirm whether or not they are able to work safely at home.
With employees working away from their line managers, supervision and monitoring becomes more difficult. However, for most employees, managers will be able to keep an eye on volume of output and keep tabs on work via the telephone and online conferencing facilities. However, given the stringent requirements of data protection legislation, anything other than ‘light touch’ monitoring of output is unlikely to be lawful. That said, even if there is a drop in productivity during this period of emergency home working, this is preferable to employees not being able to work at all.
We have already seen an attitudinal shift towards alternative models of working, with employers and employees pulling together in the face of the coronavirus crisis in order to keep organisations going, rather than alternative ways of working being seen as ‘perks’ that are contrary to employers’ interests. This means that, despite the absence of close physical monitoring, it is likely that most employees will strive to maintain productivity and service levels.
In terms of employee relations more generally, employers may need to be mindful of potential resentment between employees, particularly in organisations where some are able to work from home and some are not. If employees are sent home as a health and safety precaution (beyond government guidance) and can’t work from home, they may still be entitled to full pay despite not working. This may lead to resentment from home workers who do have to work in order to preserve their income. Similarly, there may be resentment between workers who are working from home – possibly under more pressure than normal – and workers who cannot work from home and would otherwise have been made redundant, but have been placed on ‘furlough leave’, under the government’s new job retention scheme.
Organisations will need to implement robust communication strategies and takes steps to encourage all employees to buy in to the bigger picture, both for the long-term benefit of the organisation and for the UK as a whole.