From 19 July 2021, the Government’s guidance concerning employees and workers returning to work is no longer that people should work from home where possible. However, the Prime Minister made clear in his speech on 12 July 2021 that there should be a “gradual return over the summer”, rather than a sudden return en masse. New Covid-Secure guidance has been issued. This has consolidated previous guides and aims to provide “advice on sensible precautions employers can take to manage risk and support their staff and customers.”
The concept of remote working was seen as the saviour for many businesses during lockdown, but now, working from home is increasingly being viewed as a perk or even as an incentive for recruitment purposes. There may be a little sense in that perspective, as working from home is likely to be more closely monitored by employers going forward, in terms of regulatory requirements and employee safety and welfare that fall to employers.
We can all picture the scenario where an employee who is working from home has their confidential work papers spread over the kitchen table and their laptop left open next to them. The work is visible by everyone: the cleaner, the children, the partner and friends popping round for a coffee. Or picture where confidential waste is disposed of in the kitchen bin by the cleaner or accidentally by the employee.
Carelessness can easily compromise employment obligations not only for professionals such as solicitors and accountants, but for many other types of employees in different industries as well. If the information is classed as personal data, this causes another layer of problems, comprising a data breach under the UK General Data Protection Regulation (GDPR) and the Data Protection Act 2018. A data breach, whether unintentional or deliberate, gives rise to the expectation of procedural protocol.
It is essential for contracts to set out clear rules in relation to confidentiality, including provisions for adequate security and the disposal of confidential waste.
Whilst saving on the cost of commuting, employees can incur additional costs when working from home, for example in heating and lighting. Genuine additional costs incurred during the pandemic can be claimed by employees through their tax code. Going forward, it should be agreed in advance between employer and employee what will happen about these additional costs.
There are also insurance and administrative considerations to take into account. Employers should check whether their insurance company needs to know whether employees are working from home, in particular from an employee liability perspective. Employees themselves should check whether their mortgage company, insurer or landlord needs to know.
Changing the employee’s contractual place of work
A change to the employee’s place of work will have an impact on what an employee can claim in terms of expenses. Employers should look at the terms of the contract to see what provision is in place for changing the employee’s place of work. This clause might allow an employer to change the place of work on giving reasonable notice, or it might simply specify one office location. When drafting new employment contracts going forward, this is a point that should be addressed.
Working from home can give rise to two (amongst others) very different issues for employers to contend with:
Can employers force employees to work from home if they do not want to?
Even if there is no provision in the contract for changing the place of work, an employer can still and should consult with an employee about changing their place of work. In this event, it is important to undertake a proper consultation and, as part of this, to address any concerns that the employee has. If the employee does still not agree to work from home, then they risk having their employment terminated on notice and being offered a new contract with the place of work as home based.
In order for the termination to be considered a fair dismissal, the employer must have good business reasons for making the change. Please bear in mind that this concept of fire and re-hire is contentious and very much in the spotlight. Accordingly, please do seek legal advice on the reasons and processes
What is the position in relation to employees who insist on working from home?
Employers may need employees to return to the office when these same employees do not necessarily want to. Can employees demand to work from home? They might argue that they have shown that it can be done successfully during lockdown.
There are various steps which employers can take to reassure their staff on a practical level that the workplace is as safe as possible. These include:
Ultimately, each case needs to be considered on its own merits. Some roles require supervision, some professions rely on development of their personnel through observing senior members of the team, listening to others give advice and talking through cases; this is not as effective, when carried out on a Zoom call.
All employees who have been employed for more than six months can request flexible working once a year, which can include working from home. Employers must deal with such a request in a reasonable period (3 months) but it can be refused on the following grounds:
Employees who have over two years’ service will have the right not to be unfairly dismissed. This is relevant where, for example, and employee argues that their employer was failing to protect them adequately, or insisted unreasonably that they return to the office. In such a case. They could argue that their employer had breached the implied duty of trust and confidence, which would mean that they were entitled to resign and clam constructive unfair dismissal.
Experiences during the pandemic may lead to restrictions on the circumstances in which employers can refuse a request to work from home, but ultimately it is for an employer to decide on the best staffing levels and that those who are working from home are set up to do so safely and legally.
Practical tips: how to deal with flexible working requests
More employees are now likely to want to work from home for at least part of their time, having experienced the benefits of this during the pandemic. That will suit some businesses, but not others.
Bear in mind the following points: