So, it seems from the latest Government guidance, updated again yesterday, and hot on the heels of what felt like a dramatic U-turn on whether employees should return to the office.

With infection rates continuing to climb and cities grappling with local lockdowns and national headlines, many parts of the UK are losing hope of the return of the swathes of office workers that once packed our towns and cities.

Over the summer, many employers had spent weeks carrying out diligent and detailed risk assessments, workplace modifications, deep cleans and offering COVID secure assurances to their workers. And despite all these efforts, for private sector office centric employers, the Government guidance is as follows:

“…To help contain the virus, office workers who can work effectively from home should do so over the winter.  Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so.”

How this lands with both business and employees is difficult to measure but the collective emergency response and accompanying adrenaline felt in March now feels long gone.

In August, 80% of workers in a YouGov survey reported that they would prefer to continue to work from home at least one day a week.  This came as several City firms announced that most of their employees would not be expected to return to the office full time even after the pandemic.

So where are we now?  Is your business ready to accept homeworking on more than just a temporary basis or is the office where it’s at?

7 months in and facing a challenging winter ahead, many employers are switching short term measures into longer term plans.

For employers contemplating the future of their office space, there is more to consider beyond whether expensive city centre square footage can be downsized or even disposed of.

‘Homeworker’ is not a legally defined term but is regarded to encompass both those that work from home full time and those which have a blend of home and office working on a permanent basis.

What does the contract say?
Place of work

For those employers now contemplating a more permanent move to homeworking, contractual provisions will need to be closely examined.

Employers are legally required to specify the employee’s place of work (section 1, Employment Rights Act 1996).  According to the ONS, the pre-pandemic proportion of official homeworkers in the UK (either those working mainly at home or those using home as a base for mobile working) was relatively low at just 13.9% as at March 2014.  As such, many contracts will refer to an employer’s office or offices as an employee’s place of work.

Changing an employee’s place of work will amount to a contractual variation requiring consultation with the aim of seeking employee agreement. Where this applies to 20 or more employees at a single establishment, collective consultation obligations requiring minimum periods of consultation and employee representatives may be triggered and specific advice should be sought.

Careful thought should be given as to how the place of work is drafted and how homeworking could impact other rights and obligations. For example, most employers will want to require homeworking employees to attend the office from time to time for client or team meetings, for training and internal procedures such as appraisals.

Hours of work

One of the key advantages of homeworking is often cited to be working more flexibly and using precious time otherwise lost to the commute to increase productivity. Conversely, the downside is often that for employees, it can be difficult to establish and maintain the boundaries between work and home (something that we discussed in our recent blog about the impact of homeworking on mental health and wellbeing).

Whether or not businesses intend to move to homeworking on a permanent basis, employers should carefully consider working patterns and expectations.  Does it suit the business to move away from the rigid concept of 9-5 working and introduce a more flexible core hours way of working? 

Wherever workers work, employers should note that the Working Time Regulations 1998 continue to apply and so thought should be given as to how and if breaks are monitored and whether it is appropriate to make clear in contracts that employees take responsibility for ensuring they regulate their working time and breaks.

Right to enter

A key right for employers to reserve (though one which might be met with resistance from employees) is the right to enter the employee’s home if necessary – for example to install, maintain or remove company property and to carry out assessments for health and safety where these cannot be done remotely.

The contract should also make specific provision for the return of company property on termination of employment since this could be more difficult where equipment is not within the office.

Expenses and Tax

Employers will need to revisit expenses provisions and policies to redefine where necessary what expenses can be claimed. 

For example, where employees are permanently based at home, will employers cover travel expenses to attend the office, energy, telephone and broadband costs? Note that depending on the nature of the employee’s employment, employers may be under an implied duty to meet an employee’s out of pocket expenses incurred in course of their employment. 

Specific tax implications can apply for in the homeworking context and employers should seek specialist tax advice on the implications of homeworking.

Data and Confidentiality

Data protection and homeworking provides employers with a particular challenge.

Employers will need to consider whether specific training is required and should update their data protection policies where necessary. 

This could address issues such as ensuring that IT equipment provided by the business is used solely by the employee rather than by the wider household, how any paper files will be secured and stored at home, whether employers need to provide a secure means of disposing of paper (such as a home shredder) and whether personal data stored electronically are subject to rules on appropriate storage, retention and deletion.

Look out for more content from us on data protection and homeworkers over the coming weeks.

Health and Safety

The Health and Safety at Work Act 1974 provides that an employer is responsible for an employee’s health, safety and welfare so far as is reasonably practicable.

This becomes more of a challenge in a homeworking context and employers will need to ensure they comply with their obligations by providing risk assessments that highlight any measures required to address risk.

Back in March, with the combination of childcare provision and schools closing and multiple homeworkers often under one roof, many employees had to work as best they could.  For some that included balancing laptops on beds, sofa arms, windowsills and even ironing boards in the absence of a home office and desk.

Whilst that was an urgent response to an emergency situation, if not already, employers should audit and assess how employees are working and whether provision needs to be made of desks, chairs, laptop risers and other IT equipment as well as sufficient internet and telephone line access.

In doing so, employers should also ensure that insurance provision extends to equipment used outside of the office.

Health and safety policies should be revisited to ensure appropriate mechanisms are provided for reporting accidents or injuries at work that occur at home and employees should be asked to confirm that their home mortgage/lease/insurance provisions do not prevent them from working from home. Colleagues in our Regulatory team are able to assist with queries about health and safety polices and much more.

Employers should consider employees on a case by case basis and be especially mindful of their obligations to disabled employees under the Equality Act 2010 to make reasonable adjustments. 

Note that disabilities can of course extend to mental health conditions which can be amplified where employees feel isolated at home as discussed recently by my colleague Susan McKenzie.

Engagement and culture

Culturally, employers will also need to consider how on a long-term basis employee engagement will be maintained, how supervision will be provided, how team work and collaboration will be facilitated and how performance and welfare will be monitored.

Speak to us

In an uncertain climate, one thing that seems clear is that whilst we hope COVID-19 will be temporary, the changes it has brought stand to change the way some of us work forever. 

Whether your business is embracing homeworking or trying to resist it, it’s important not to fall foul of your obligations as an employer and to understand how to approach this issue with your workforce. 

If you have any questions about homeworking, please do get in touch with a member of our Employment team.

Where your question is focussed on health and safety, please contact a member of our Regulatory team

This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.