Following Deloitte’s recent report that one in four employees hope to work from home permanently, and not return to the office, it is important that businesses recognise their continuing obligations even when employees are not working in an office. Whilst it may be an appealing option for employers who want to downsize expensive office space, working from home does come with cost implications.
Health and safety
During the emergency imposed by the coronavirus pandemic, employees have adapted well on very short notice. However, many are working in insufficient space on inadequate desks with make-shift chairs. There has been anecdotal evidence of some employees working on ironing boards during the Government’s mandatory ‘work from home’ directive. Although most recognised the extraordinary situation the country found itself in, long term this brings issues with posture and especially neck and back conditions.
Employers have a continuing obligation to provide a safe place of work and a risk assessment must be undertaken wherever the employee is working. This does not have to be by a health and safety qualified professional, despite what health and safety consultancy companies may try and persuade employers of when trying to sell their services. An employee can carry out an employer-drafted risk assessment and employees must always remember that they have joint responsibility for their own health and safety and must bring any changes to the attention of their employer.
Although there are obvious considerations such as the use of a correct desk and chair, one factor that probably does not currently feature on a standard health and safety questionnaire for office-based employers, is likely to be a section on mental health. After all, working alone at home is not for everyone and there has to be support in place to deal with employees working remotely.
Confidentiality
There is then the question of confidentiality – what if the employee has their laptop open on the dining table, surrounded by papers with highly confidential information on display. The cleaner, the plumber, the nanny, all can see it. Or the employee disposes of confidential waste in the dustbin? Not only will this cause problems with the Information Commissioner if it is personal data, but also compromises professional obligations especially for professions such as solicitors and accountants. So contracts need to be very clear and also processes for disposal of confidential waste.
Additional costs
Many employees have raised the question of additional costs of heating and lighting working from home – of course this has to be balanced against no commuting costs and cheaper lunches and coffees, but if there are genuine additional costs during the pandemic then these can be claimed by employees through their tax code. Going forward, it needs to be agreed between employer and employee what will happen about additional costs.
Contractual place of work – where is it and can it be changed?
And then there is the question of contractual place of work – this will have an impact on what an employee can claim in terms of expenses. This clause might allow an employer to change the place of work on giving reasonable notice.
Can employers force employees to work from home if they do not want to? If their place of work is clearly set out in the contract as the office then even without a clause enabling the employer to change this, this does not stop an employer consulting with an employee about changing their place of work. Those employees who, despite consultation and despite all their concerns being addressed, do 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.
Provided that the employer has good business reasons for making the change (such as the majority of employees wanting to work from home) then this is likely to be a fair dismissal.
Other administrative considerations
There are also other administrative considerations: does the employer’s insurers for their employee liability insurance know that employees work from home? Does an employee’s mortgage company, insurer or their landlord need to know about it?
Employees working abroad
What about employees who want to work from other countries? It is important to take accountancy advice in relation to the tax implications on working in another country and local employment law advice as although the employee may be working for a UK based company, they may acquire local rights in the country they are resident.
There are also data protection issues if the employee is working outside the UK and personal data is being transferred – some countries such as Spain have very strict data protection rules about exporting data.
Employees demanding to work from home
Employers may insist on employees returning to the office when they do not want to – can they insist on working from home? After all, they have shown it can be done and that fear of binge watching box sets during working hours have not materialised.
However, some roles involve supervision, some professions rely on development of their teams through observing behaviours, listening to others give advice and talking through cases – which just cannot be done effectively on Zoom or teams. The legal profession being one such profession.
All employees employed for more than six months can request flexible working once a year, which includes working from home. An employer must deal with this in a reasonable period (3 months) but can refuse it on the following grounds: extra costs; the work cannot be reorganised among other staff; inability to recruit; affect on quality and performance; inability to meet customer demand; lack work to do during the proposed working times; planned changes to the workforce. Obviously after the experience of the last fifteen months they will be restricted in some of the reasons they say no, but ultimately it is for an employer to decide on the optimum staffing levels and that those working from home, are set up to do so safely and legally.
Beverley Sunderland is Director and Partner at Crossland Employment Solicitors. She is a highly experienced Tribunal and Appeal Tribunal advocate and a regular trainer in employment law. She advises on all aspects of employment law and industrial relations and is particularly experienced in enforcing restrictive covenants in the High Court.
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