As lockdown returns, these FAQs look at the various considerations that employers need to bear in mind in relation to employees working from home.

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As of 5 November 2020, England is back into lockdown. While not quite as severe a lockdown as in March – many will be relieved that schools and other educational institutions and childcare facilities can remain open – it’s clear that working from home will continue to be the new normal for most office-based staff. 

Employers will need immediately to review their homeworking practices in light of both the new lockdown and continually changing government advice. In the longer term, this will also mean reviewing homeworking policies and arrangements on a more formal basis. These FAQs summarise the government guidance on work under the new restrictions and a range of other considerations that employers need to take into account in relation to homeworking.

Should every office-based employee in England work from home?

The new lockdown measures require employees to stay at home except where they cannot work from home, i.e. it is not reasonably possible for them to do so. If the exception applies, they can go to work.

For many, travelling to an office to carry out a screen-based role is unlikely to be justified, although there will be some office-based employees for whom it is not reasonably possible to work from home. Employers will need to make a careful assessment. For more information, see our article on the new lockdown restrictions.

Health and safety

Do employers have health and safety duties to homeworkers?

Yes. Employers owe a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, and provide and maintain a safe system of work – including for employees working from home.

The UK’s workplace health and safety regulator, the Health and Safety Executive (HSE), has updated its homeworking guidance to take account of working arrangements during the  Covid-19 pandemic.

Acas has also published guidance on working from home which can be accessed here.

Do employers need to carry out a risk assessment for those working from home?

The short answer is yes.  However, the exact nature of the assessment will depend on the type of work which is being undertaken at home.

Under the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers have a general duty to conduct a risk assessment of all the work activities carried out by their employees. This involves identifying any hazards and assessing associated risks.  Employers must take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. There are also specific obligations in relation to the use of display screen equipment (see below).

The duty of care which employers owe to employees also apply to those working from home. In these exceptionally challenging times, however, employers are unlikely to be required to approach things in the usual way – not least, because it isn’t currently possible for them to visit employees’ homes. Guidance issued by the HSE on regulating occupational health during the coronavirus outbreak says that it will continue to take a flexible and proportionate account of the risks and challenges arising from the pandemic.

At the very least, employers ought to undertake a basic homeworking risk assessment and consider whether there are any risks which arise from the type of work which is being undertaken from home, whether it can be done safely and whether any measures ought to be put in place to protect employees from any risks identified.  For employees whose work is largely on computers and the telephone the risks are likely to include feelings of isolation, a lack of supervision, physical issues arising from prolonged use of display screen equipment and working long hours and/or inadequate breaks from work.  Employers should go on to consider whether they can implement any measures to minimise the impact of these risks. For example:

• Check that each employee feels the work they are being asked to do at home can be done safely.

• Ensure adequate supervision of junior or less experienced staff members, including new joiners.

• Keep in touch with lone workers, including those working from home, and ensure regular contact to make sure they are healthy and safe. There will always be greater risks for lone workers with no direct supervision, or anyone to help them if things go wrong. This is especially important for new joiners who may struggle to feel integrated.

• Establish clear expectations on both sides in relation to communications, working hours, availability and so on.

• Ensure employees have avenues to report mental wellbeing issues and schedule regular check-ins with homeworkers. In our survey, over a quarter (27%) of employers said that they had seen a significant increase in mental health problems for employees who have been able to work from home. We have produced a helpful guide to wellbeing while working from home and Acas has produced guidance on spotting and handling mental health in the context of homeworking and furlough.

Are there particular obligations where employees are using laptops and computers at home?

The Health and Safety (Display Screen Equipment) Regulations 1992 contain specific obligations in relation to display screen equipment (DSE). Employers must:

• Identify risks for individuals who regularly use DSE, including laptops used for prolonged periods, as a significant part of their usual work. (HSE guidance suggests this means daily usage for continuous periods of an hour or more.)

• Reduce the risks identified to the lowest extent reasonably practicable.

• Provide adequate training and information to employees.

HSE guidance on protecting homeworkers states that there is no increased risk from DSE for those working from home temporarily, so employers are not expected to undertake a full home workstation assessment. Nonetheless, it would be advisable to provide guidance and information on health and safety risks arising from homeworking and to ask employees to assess risk in general terms (including in relation to DSE related problems). The HSE provides a useful checklist which can be given to the employee. Employers should keep the situation under review, since the adverse effects of homeworking with a sub-optimal set up will increase the longer the period of homeworking continues.

For employees working from home on a long-term basis, the risks of using DSE must be controlled by them doing a workplace assessment at home. It remains to be seen whether, as homeworking continues on a widespread basis, the HSE’s position will move towards requiring full workstation assessments for all employees working from home for Covid-related reasons. Given that many employees will have been working at home for over 6 months, it is prudent to provide guidance and support to employees so that they can undertake a workstation assessment. Certainly, those employers moving to a model of permanent remote working for the long-term, regardless of the pandemic, will need to carry out a suitable risk assessment.

What health and safety duties do companies (or “end-users”) have towards temporary or agency workers carrying out work for them at home?

The situation has become more complex in relation to temporary or agency workers during the pandemic, where they are working under the control of the end-user but not at the end-user’s premises. In short, agency workers should be provided with the same level of health and safety protection as employees.

Broadly speaking, the end-user has responsibility for ensuring the health and safety of the agency worker while the individual is working under their control, while the intermediary (e.g. the agency) has the duty to ensure that the end-user has taken steps to ensure the health and safety of the workers. 

Where there are multiple intermediaries (e.g. agencies or umbrella companies) involved in an engagement, or the possibility of multiple workplaces, the parties should agree who will take responsibility for which actions. End-users are encouraged to engage in active communication with all parties to ensure no-one’s health and safety is compromised.

Provision of equipment and expenses

Do employers need to provide homeworkers with equipment to use at home?

There is no general legal obligation on employers to provide the equipment necessary for homeworking.

In guidance issued during the first lockdown, the government encouraged employers to take every step possible to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. Some employers have developed systems to allow employees to take equipment from the office to satisfy this shorter-term need. Some employers are providing a (generally fixed sum) budget to employees to buy necessary work equipment for working at home, so long as receipts are provided.

Employers should provide equipment or flexibility for employees who are identified as being at risk. In circumstances where equipment is specifically needed to address health and safety concerns, employers are liable to fund the cost of that equipment (and possibly have a role in selecting it).

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2020. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

Employers and employees should review their respective insurance policies to ensure work equipment used at home is covered.

There is no income tax or NICs charge where an employer provides office equipment for employees working from home under a formal homeworking arrangement if certain conditions are satisfied, including that the property remains the employers and that there is no significant private use of the equipment.  A new temporary Covid-19 exemption has been introduced where an employer reimburses the employee for the cost of office equipment purchased by the employee in the period 16 March 2020 to 5 April 2021 provided certain conditions are satisfied, including that there is no significant private use.

HMRC has updated its tax rules for employers who cover the expense of providing or reimbursing the cost of homeworking equipment. Detailed guidance can be found here.

Who is responsible for paying any additional homeworking expenses?

Employees will be using their own heating, lighting, broadband and sometime phone lines while working from home but it will be challenging to quantify the amount used for work purposes. Employers are not legally required to reimburse employees for such costs, but they may find themselves under pressure to allow for employees to reclaim some of these expenses. Employers that decide to meet (a proportion of) these costs should review expenses policies to cover this.

If an employer decides to reimburse employees for the additional costs which the employee incurs while working at home under a formal working arrangement, the employer may pay up to £6 per week (£4 per week prior to 6 April 2020) free of income tax and NICs without the need to see receipts or records of expenditure.  If the employer decides to pay more than the £6 per week it will need to either: (i) show that it is reimbursing the actual costs incurred by the employee; or (ii) ensure that the excess above £6 per week is subject to income tax and NICs. The exemption is only available for additional costs and, for example, would not include internet/broadband charges which the employee was paying for prior to working from home under a formal arrangement.

Is there any tax relief available to employees in relation to office equipment and additional expenses?

Some assistance from HMRC is available in respect of both equipment and expenses. HMRC guidance states that payment or reimbursement to employees of up to £6 a week is non-taxable for expenses like electricity, heating or broadband incurred by an employer when an employee is working from home. Further guidance can be found here.

Employees can also claim tax relief if they are paying for these expenses, although they should not claim where their employer is covering the relevant expenses – see here.

Data protection and confidentiality

How should we manage the increased risk to data protection and confidentiality created by homeworking?

Information security and confidentiality are more difficult to manage where employees are hosting calls and meetings at home with others in earshot, or without the usual office systems in place for securing devices and documents. However, the normal duties to protect employer and client confidential information apply even when employees are working from home.

Employers should set out employees’ responsibilities in their homeworking policy (see below) and ensure that employees have adequate means of protecting information. For example, employers should be satisfied of the security of devices and software employees are using (e.g. the security levels of video-calling software and services). Care should be taken in choosing a secure platform that complies with your security requirements.

The Information Commissioner’s Office has produced guidance on the data protection aspects of working from home.

work from home – can we monitor them?

One of the issues which was traditionally raised by employers about homeworking was how best to monitor productivity or quality of output and enable effective supervision. Some employers, out of concern that employees are not managing to “switch off”, might also wish to know what hours employees are working.

Even when employees are working from home, employers still need to comply with duties to ensure rest breaks and other working time obligations. Some employers have adopted technology such as “lone worker apps” through which employees check-in on the app at the beginning of the day and check out at the end of each day.

Employers can monitor employees’ work activities, but the level of monitoring needs to be proportionate and reasonable – discussed further below.

What does an employer need to take into account when considering monitoring?

There is no statutory right to privacy in the UK but this does not mean that an employer has unrestricted monitoring rights. Inappropriate and disproportionate monitoring could lead to claims involving the employees’ right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Employees also have data protection rights and can potentially claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal.

In relation to data protection, the Information Commissioner’s Office’s employment practices code contains good practice guidance for employers in this area. In summary, employers should:

• Complete a privacy impact assessment setting out the purposes of the monitoring, the adverse impact on data subjects, the mitigation and its justification.

• Inform employees of the monitoring that is being undertaken, and the reasons why it has been adopted.

• If sensitive data is being processed, ensure that a legal basis for such processing is being met.

• Limit the number of people who have access to the software and ensure that they are properly trained in confidentiality and data security.

• Not use covert monitoring except in the most extreme circumstances (e.g. where criminal activity or similar is suspected).

Employers will need to weigh the perceived benefits to the business of monitoring, with the potential impact on morale, employee relations and mental health, which may ultimately lead to a deterioration in productivity. For a more in-depth discussion of these issues, please see our article.

Amending employment documentation

Should we amend existing employee’s contracts to reflect homeworking status?

Until the pandemic, homeworking was generally considered to be a non-standard, flexible working arrangement, where the “default” work location was the employer’s premises. Of course, employees have been working from home during the pandemic out of necessity rather than by choice, and the formalised flexible working request regime has to some extent fallen by the wayside (at least temporarily).

Employers may, however, wish to think about whether home working (or other flexible) arrangements need to be formalised in certain cases. Full or partial homeworking may have become a preference for many employees and many employers are considering reducing the office footprint in the longer-term. Even in July our employer survey showed that employers were already having to manage requests for permanent change. To claim the tax and NICs exemptions and reliefs there needs to be a formal home working arrangement in place between the employer and employee under which the employee must work at home regularly, so it is good to record this in writing.

Where contracts are amended to reflect the employee’s home as the place of work, employers will need to retain some flexibility to deal with some of the practicalities. For example, requiring employees to attend the office (for training, appraisals or disciplinary issues) and dealing with how expenses for travel to and from the office should be met. If an employee moves house, this may mean higher travel expense claims or a practical barrier to attending work at the office so employers could consider placing limits on how far an employee can move from a particular location. Employers may also want to retain the flexibility to alter the arrangement temporarily and consider making agreement to homeworking conditional on certain conditions being met, such as satisfactory performance being maintained.

While the uncertainty continues, employers may decide to keep homeworking under review until a definitive return to the office is possible. If so, you should continue to make clear that homeworking is, for the moment, a response to an exceptional situation, and that once a more comprehensive return to the office is anticipated, employees may make flexible working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis. For more on this topic, please see our article.

Some employers have received requests from employees asking if they can work from “home” for an extended period overseas. Employers need to consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request where “home” is not the UK. You can find out more on these issues in our article here.

What is the position for new starters who begin employment as homeworkers?

While recruitment activity has slowed down in many businesses, it has not stopped completely. Employers may wish to consider whether new recruits should be employed on a “working from home” basis from the outset, rather than stating a work location in the contract which they will not attend for some time to come.

Location clauses included in contracts can be drafted to state that the work should be performed from home initially, with a move to the office once it is safe and appropriate to do so. Additional obligations could also be included in contracts for new starters regarding access to an internet connection and other communication methods. Employers may also need to provide equipment (e.g. laptop, mobile phone) to individuals who would not normally be provided with these in their job role.

Should we amend existing policies or handbooks?

Many employers are currently reviewing how existing sickness, data and IT, disciplinary and grievance and benefit policies are impacted by a shift to homeworking.

Regarding sickness and absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force on 28 September 2020. These make it a criminal offence, where an employer is aware that a worker is required to self-isolate, to allow the employee to attend work. In view of the range of circumstances in which employees may be absent from work due to the pandemic, it would be prudent to amend policies to allow for these potential temporary homeworking and Covid-related absences.

Regarding data and IT, it would be sensible to address data and information security issues related to working remotely, together with any need to address monitoring or other new ways in which personal data is being processed due to use of remote-working software.

Regarding disciplinary and grievance policies, employees working from home may no longer be able to attend in-person meetings for disciplinary and grievance procedures and the normal timelines for dealing with issues may need to be altered accordingly. Policies should be updated to ensure a fair procedure for both office workers and homeworkers.

As mentioned above, many employers are either updating or implementing homeworking policies, which draw together many of the areas mentioned above into a single document.

Employee benefits

How could homeworking impact employee benefits?

Some benefits have been used by employees in ways that are specific to their office location and may need to be reconsidered.

Homeworkers are unlikely to be using their commuter season tickets, which may have been purchased via an employer loan, and in many cases employees will already have claimed refunds where possible depending on the provider. Loan arrangements should be discussed and reviewed with the employee directly.

Other benefits may be specific to an office location – for example, subsidised or on-site childcare, gym membership, food. There may be alternative ways of helping employees in the longer term while they work from home, such as supporting them to access their tax-free childcare entitlement, providing occasional food vouchers or reimbursing the cost of attendance at local fitness classes as opposed to a city-centre gym. The provision of such alternative benefits may result in an income tax and/or NICs liability so employer would need to bear this in mind and seek appropriate advice.

Diversity and inclusion

How do we ensure that homeworking doesn’t disadvantage certain groups?

Homeworking may have its advantages for many employees, but employers should be cautious about whether homeworking has the practical effect of disadvantaging certain groups.

This may, for example, occur because of a lack of access to internet in rural areas, shared accommodation, disability, caring responsibilities, financial issues or other individual circumstances. Diversity and inclusion policies extend to homeworking and employers should invite and encourage employees to make any disadvantages known in order that reasonable steps can be taken to remove or reduce them.

As mentioned above, disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2010. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

 

Related Item(s): Employment, Covid 19 – Coronavirus, Occupational Health & Safety

Author(s)/Speaker(s): Abi Frederick, Annabel Lindsay,