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Working from Home: a Lifeline (COVID-19 issue)2nd April 2020 Employment
The government's announcement on 23 March 2020 that all members of the public must stay at home, except in very limited circumstances, means that all employees must be permitted to work from home where possible. Commuting to work is permitted, but only where the work "absolutely cannot" be done from home.
Swapping suits for sweatpants and working from the comfort of one’s home certainly poses its challenges – various distractions at home, feeling isolated from the team, being too anxious to ask for help and not being strict with breaks to name a few.
It therefore comes as no surprise that many employers are reluctant and fear that working remotely may not be productive enough or that it may dilute a firm’s culture, but like it or not, working from home is quickly becoming the norm for us all.
There are certain considerations for employers who are implementing home-working, including:
- Measures to protect confidential information and personal data;
- Health and safety implications of the arrangements;
- Arrangements for management and supervision of homeworkers;
- Any special equipment / software which should be provided.
From an employment law perspective, employers should not forget that they are still responsible for their staff’s health and safety (section 2(1), Health and Safety at Work etc. Act 1974), including conducting a sufficient risk assessment of activities carried out by homeworkers and reasonable adjustments for disabled members of their teams.
There is some very helpful guidance from Acas on working from home which provides an overview of the responsibilities of employers and employees, as well as information on dealing with high levels of stress.
What are the key health and safety implications of home-working and what can employers do to help?
One of the principal health and safety issues for homeworkers is stress. Homeworking can cause issues with the enforcement of boundaries between work and home life, increasing stress levels. It can also lead to feelings of isolation, loneliness and alienation. Employers should ensure appropriate support networks are in place for employees working from home. It may be useful to set up regular meetings via Skype/Zoom to check in and ensure everyone is coping. This is also an opportunity for employees to share concerns and discuss any difficulties they have experienced. It may be a good idea to set up a group WhatsApp to allow everyone to keep in touch on a social level and maintain a team spirit. Employees should have agreed work hours after which they are not to be contacted about work – this may help the employees to set down healthy boundaries and ensure they achieve a healthy work-life balance.
What about employees classed as ‘shielded’ or vulnerable? Should they be working from home?
In addition to the various restrictions of the current lock-down, the government issued shielding guidance on 21 March 2020 which sets out categories of people extremely vulnerable to Covid-19. These include organ transplant recipients, people with certain cancers, those with severe respiratory conditions, women who are pregnant and people with significant heart disease.
Employers who are permitted to continue operating must consider very carefully if they should insist on a worker commuting to work, especially where that worker is classed as vulnerable under the shielding guidance. Employers may find themselves exposed not only to contractual claims but also to personal injury claims should an individual contract Covid-19 whilst at work or travelling to work. It would therefore be best practice for employers to allow these vulnerable employees to work from home, where possible.
What are vulnerable employees entitled to be paid if they cannot work from home?
Such eligible employees are likely to be entitled to SSP or contractual sick pay (if any). It is worth noting that many individuals who may need to be under quarantine for 12 weeks might find it very difficult to survive on SSP alone and feel pressured into returning to work. This of course will place employers in a particularly difficult position, and they could consider suspending these vulnerable employees on full pay or potentially furloughing them. See Guidance on Furloughing for more information.
What evidence should employers require from vulnerable employees in the shielded group?
The government has advised employers to use their own discretion in terms of what evidence is required from employees. For instance, if an individual has received a text message/letter from the government identifying them as vulnerable, employers may certainly accept this as proof but if there are any doubts as to the source of such notification, corroborative evidence may be requested.
What about other employees – are firms able to force employees to work from home?
Generally this would only be technically permitted if this is stated in the contract of employment, as it would be a unilateral variation. Employees are however unlikely to object to this if faced with a possible redundancy or working from home. Many would feel relieved since they would not need to commute.
If the employee has to look after children/other dependents whilst working from home, can the employer refuse this request?
- In a normal situation, this is probably not appropriate and the employer could refuse to allow the employee to work from home. However, life is currently by no means normal and employers will have to be more flexible and take a pragmatic approach. Acas has suggested some flexible working arrangements, including:
- Reduced targets
- Extended deadlines
- Flexible working hours
- Working part-time
If an employee thinks that they may not be able to work at all because of caring for a young child for example, they may request time off, however, this will be unpaid, unless there is a contractual provision allowing paid leave to be taken.
Can self-isolating employees work from home or should they be paid SSP?
Newly introduced legislation allows people who are asymptomatic and self-isolating to receive SSP from day one (from 13 March 2020 onwards). The legislation is however drafted in a way to suggest that the employee’s inability to work must be due to the quarantine itself. It follows that if someone is well enough and has the facilities to work from home, they should be allowed to do so.
The new rules are likely to have been written in a way to prevent employers from sending staff home to self-isolate under a health and safety pretext, to save paying them full pay and only pay SSP (which can be claimed from HMRC for the first 14 days).
What measures can employers take to protect confidential information and personal data?
Employers need to comply with their obligations under GDPR. It is important for employers to provide training on data protection and confidentiality, covering areas such as what is and is not an authorised use of data; the obligations of the employees and the consequences of non-compliance with such regulations. Employers should also carry out a data privacy impact assessment. This is designed to help organisations identify the most effective way to comply with their data protection obligations. The assessment should address questions such as:
- Who will have access to the employee's computer/data stored on it?
- Does the remote working system permit the employee to encrypt information?
- How is information moved between home and office, both physically and electronically?
- Are there rules on retention of documents, proper disposal of paper-based records and storage and deletion of computerised personal data?
- Have staff been given training and guidance about their obligations to safeguard personal data?
Working remotely and tackling the logistical issues may appear daunting, however, by embracing technology, many employers will hopefully continue to thrive in these challenging times and successfully adapt to having a home-working workforce.
If you need advice or have any queries about dealing with any workplace issues arising from the COVID-19 outbreak, please contact Paul Chamberlain or another member of the employment team at JMW Solicitors LLP on 0345 646 0342.
This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.
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