Covid-19 – Employment Law Update – 22 May 2020

Welcome to the Future: permanent home working and the steps employers need to take

 

In perhaps what is a sign of things to come, social media giant Facebook announced on Thursday that it will allow as many as half of its 45,000 employees to work from home permanently. The indomitable tech firm’s CEO explained, “It’s clear that Covid has changed a lot about our lives, and that certainly includes the way that most of us work.” Mark Zuckerberg added, “Coming out of this period, I expect that remote work is going to be a growing trend as well.”

Some of Mr Zuckerberg’s contemporaries apparently agree with that analysis.  Last week Twitter and Spotify both announced plans to allow employees to work from home permanently. Given the tech sector has a track record of leading the way in workplace trends, the announcements are worth taking note of.  For those employers thinking of following Facebook’s example, a shift to more permanent forms of home working involves a lot more than an internal announcement to staff and eyeball grabbing headlines.  Employers will need to take a number of important steps to prepare and monitor home working arrangements in order to meet their legal obligations to employees.

Health and Safety

Employers are responsible for health and safety in the workplace and that will continue to apply to home working arrangements.  Health and safety laws and regulations such as the Health and Safety at Work Act 1974 and the Health and Safety (Display Screen Equipment) Regulations 1992 will apply to home working arrangements.

As an initial step, employers should have a conversation with each employee to confirm that the work they are doing at home can be done safely and to come to an agreement on what equipment is needed while providing support to the employee if any new equipment is to be set up in their home.

By law, employers must carry out a workstation assessment for employees who use display screen equipment every time a new workstation is set up.  Employers should also provide employees with advice on completing their own basic assessment at home.  An example of a suitable document for a self-assessment can be found on the Health and Safety Executive’s website here.  Employers should take further steps as necessary to address any needs that arise such as the provision of ergonomic equipment or anti-glare screens and the provision of reasonable adjustment for employees who have disabilities.

It is important to note that employees have a duty to take care of their own health also; they should therefore keep in contact with their line managers and inform them of any health and safety risks or workstation arrangements that they would like to change.

Mental health

The Arbitration, Conciliation and Advisory Service (Acas) recently published new guidance to help employees manage their mental health at work during the Coronavirus crisis after a survey found two out of five employees working from home felt stressed, anxious or experienced mental health difficulties: https://bit.ly/3cJ1oRQ.

Employees should be encouraged and reminded to take regular breaks to ensure working patterns are not detrimental to health.  Employers should also establish channels of communication which can include regular “keeping in touch” conversations between an employee and their line manager or managers and their team members using video conferencing or conference calls.  Ideally, employers should offer other forms of support and assistance such as employee support programmes through which mental health support can be accessed by employees without charge.

Flexible working and caring responsibilities

Clearly home working poses challenges for those employees who have childcare or caring responsibilities.  By law, an employee who has 26 or more weeks of continuous service has the right to make a flexible working request.   Flexible working can include requests to reduce working hours to part time, flexible start and finish times, and compressed hours.  If clients do not already have one, we recommend the development of a flexible working policy that reflects the legal position and sets out how employees can make such requests.  Our advice to clients is to deal with each situation on a case by case basis and be sensitive about an employee’s needs.

Cybersecurity and confidentiality

The exponential increase in the number of people working from home means employers are exposed to higher risks of cybersecurity breaches.   The World Economic Forum recently surveyed some 350 senior risk professionals and nearly 38% cited cybersecurity attacks as the most likely global fallout from the Coronavirus crisis: https://www.weforum.org/reports/covid-19-risks-outlook-a-preliminary-mapping-and-its-implications.

In addition to the engagement of cybersecurity experts to conduct assessments of IT systems, clients should consider the development of workplace cybersecurity policies and procedures so that employees should be made aware of their obligations to keep all company equipment and data secure and confidential, whilst following software security and update procedures.

Contractual arrangements with employees

Employers should review their existing terms and conditions for employees and record any necessary amendments to those terms (by agreement with the employee) to reflect home working.   For instance, an employee’s place of work may need to be varied if the company does not have the discretion to vary it within the existing contract.   A working from home policy should be established and included in any staff handbook and the employment contract should make reference to an obligation on the employee to comply with the policy (and the staff handbook) at all times.

As part of his announcement, Mr Zuckerberg mused about paying some employees who work from home a lower salary to match local costs of living.  For those employers who would like to follow suit, agreement with employees will need to be reached first before pay can be reduced, otherwise there is a risk of breach of contract and/or constructive unfair dismissal claims by employees.

Insurance

A good working from home policy should contain a requirement that employees maintain appropriate insurance that allows for home working.  Employees should confirm they are not in breach of any covenants with their mortgage provider or landlord as well.  Employers should also ensure their insurance policies cover home working and claims by third parties.

Ongoing monitoring

Finally, employers should regularly monitor their home working arrangements.  This can include employee surveys and feedback sessions, taking actions as appropriate and the stress testing of IT systems.

Should you require any assistance with your employment arrangements during this difficult period, do not hesitate to contact the co-head partners of our employment department.  Ewan Keen can be reached at 020 3206 2724 (ewan.keen@smab.co.uk) or Tamara Ludlow at 020 3206 2739 (tamara.ludlow@smab.co.uk).