With the guidance (and legislation in areas of local lockdown) in respect of whether employees should still be working from home (where they can) differing across counties and in areas with devolved powers (such as Wales and Scotland), we would not be able to fit into one blog all of the rules which may apply.

This blog, by associate director of the employment & HR team at Greenaway Scott, Selena Baker, focuses on the practical implications of homeworking.

A report by Management Today has confirmed that 55% of employers are now more likely to hire an employee to work either fully, or predominantly, from home but what practical considerations should employers think about in respect of homeworking and what are the benefits and/or drawbacks of homeworking?

Potential Benefits

• Increased motivation/productivity: Some employees have increased motivation and productivity whilst working from home.
• Retention of Staff: This is especially the case if employers cannot afford market or higher than market salaries- offering temporary/permanent homeworking in addition to the statutory employer obligations can help retain skilled staff.
• Reduced cost: a reduction in need or size of office space can be one of the biggest savings.
• Disaster Management: Organisations geared to homeworking may be better able to withstand external disruptions such as change in coronavirus guidance, adverse weather or office issues.

Potential negatives/drawbacks

• Reliant on Trust: Sometimes there can be decreased productivity or motivation and/or the employer will be reliant to a large degree on trust and may fear that some workers will not “pull their weight” working from home.
• Data security: with both printed papers, and internet communications, data security is probably one of the biggest concerns but this risk can be mitigated by policies etc. as set out below.
• Loss of control and damage to team working and culture
• Crossover between work and home life: although one of the benefits is the increased flexibility and that employees often see homeworking as a benefit, some employees may struggle to keep home and work separate and work excessive hours leading to burn out and reduced productivity.

It would seem that employers are leaning more towards homeworking in the future, with Management Today finding that 55% of employers surveyed are now more likely to hire an employee to work fully or predominantly from home. CIPD are now calling on the government to make the right to request flexible working a day-one right (which is currently a right after 26 weeks).

So, what can employers do to help mitigate any negatives?

• Having specific homeworking clauses in your employment contracts. Ideally, these will deal with taking breaks (that it will be up to the employee to ensure that they take sufficient breaks along with ensuring that the employee is not in breach of any conditions of any mortgage etc. or any other conditions due to working from home along with confidentiality provisions).
• Taking appropriate measures to protect confidential information and personal data.  Employers should consider whether they should give training and also consider carrying out a data privacy impact assessment covering who may have access to the employee’s computer and whether employees understand their obligations/ the policies the company has in place. Ensure that the company has adequate data protection policies and related policies (for example bring your own device policies, IT and Communication policy).
• Health and Safety- 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.
• Deciding whether any equipment should be provided- employers may wish to do this so they have more control over the protections on the equipment (for example anti-virus) but if they do so, employers should ensure they cover what would happen should the employee leave for any reason.

Do we have to allow working from home?

Unless there is specific legislation (such as in the lockdown areas in Wales which makes an offence for employees to go into workplaces where it is not reasonably practicable for the person to work from the place where they are living) there is not an absolute right for employees to work from home.

With the pandemic ongoing, the advice on homeworking is very specific to each area and very fact specific and so we would strongly suggest seeking legal advice if an employee asks to work from home, if you are in a local lockdown area or any of your employees live in a local lockdown area, or where there are particular risk factors such as an employee living with vulnerable relative. We are seeing a large influx of claims for dismissals relating to health and safety and/or whistleblowing, for which the potential damages are uncapped.

Irrespective of the pandemic, an employer must consider such requests in some circumstances, including if the flexible working legislation applies (which allows employees who have over 26 weeks service to request flexible working and if they do so, they are protected from detriment or dismissal) or where a claim of sex or disability discrimination  (reasonable adjustment may need to be made for example)is possible. In respect of flexible working, there is a set procedure that must be followed, with the recourse for not doing so a claim in itself (in addition to any potential unfair dismissal claim) we would strongly suggest obtaining legal advice if an employee makes a flexible working request.

Should you require support and assistance in relation to homeworking, including providing relevant policies and/or variation of contracts or advice on the flexible working procedure, our experienced advisors will be able to provide practical advice to support your business through the process. For advice, contact our employment & HR team at [email protected] or call us on 029 2009 5500.   You can also book an appointment with one of our team at a time to suit you, by clicking here.

The information contained in this article is for information purposes only and is not intended to constitute legal advice.