Now that all COVID-19 restrictions have been lifted in England, there has also been a change in Government guidance, moving from a recommendation that everyone should work from home if they can, to all staff returning to the workplace, albeit on a gradual basis.
Working from home arrangements are likely to have been put in place at great speed at the outset of the pandemic, with little thought to compliance requirements. Now that Government restrictions have lifted, and with the potential for more permanent arrangements to be put in place, it is important to ensure that contracts, policies and procedures are updated to reflect the new normal, whatever that may be!
Introducing changes
As all employers will know, trying to keep every member of staff happy is near enough impossible! Some employees will be desperate to return to their usual workplaces and regain their kitchen tables at home, whilst others may well have enjoyed the improved work/life balance that working from home has allowed. For many organisations, a mixture of the two seems to be a favoured solution, often referred to as hybrid working.
But, how does an employer get everyone to agree? Well, consulting with staff about what they would like is important. This can be through staff surveys or meetings with employee representatives, for example.
Employers should be aware that unilaterally imposing a change runs the risk of breach of contract or constructive dismissal claims. As a result, generally speaking, introducing something as a trial rather than a permanent change may mean that it is more likely to be accepted.
Allowing a trial period also allows for adjustments to be made if what was originally planned is not quite right to meet the needs of the business or if a slightly different arrangement is preferred by staff, such as more fixed days of working in their usual workplace if that means less hot desking, for example.
Updating employment contracts
Once more permanent arrangements are agreed, it will usually be necessary for employment contracts to be updated to reflect these. This is particularly important as otherwise terms can be implied into them, when a particular way of working becomes regular custom and practice.
It is likely that contractual terms will have changed during the pandemic, for example the employee’s place of work became their home, rather than the office, but it is also likely that the employer’s intention was that this would only ever be a temporary arrangement. As a result, it is important that an employment contract accurately reflects the working arrangements actually happening on a day-to-day basis.
Often employment contracts contain a ‘mobility clause’, which will provide a contractual right for employers to require employees to work from a different location, so long as it is reasonable. However, it is unlikely that this would give an employer the right to permanently require an employee to work from home instead of their usual workplace.
Furthermore, it is a legal requirement for an employment contract to stipulate an employee’s place of work. If the employee is likely to work in various places, the contract should also specify that and give an indication of where the different locations are likely to be. So, if employees are likely to work from a fixed workplace location, such as an office, for say 3 days per week and from home for 2 days a week, then their employment contract should be revised to state that.
Updating policies
If hybrid working is being introduced or allowed to continue on a more permanent basis, it is recommended that a policy is put in place to set out exactly what is expected of an employee when working in this way. This could include, for example, how many days per week they are required to attend their usual workplace, the fact that the employer retains the right to require them to attend on specified days, for example for a meeting, to attend training or in accordance with the needs of the business.
Expenses policies may also need to be adjusted to reflect the fact that employee’s may need to purchase some office supplies themselves if they are working at home more regularly, such as paper or printer ink, and whether or not the employer agrees to pay for this. Employer’s may also decide to contribute to other costs of an employee working from home, such as for faster broadband or other increased utility costs such as heating or lighting.
Data protection
Working from home has caused a great deal of potential data protection issues, such as potential confidentiality breaches due to employees working in house shares, not having access to appropriate confidential waste disposal and using personal computer equipment for work purposes which may have insufficient protection against computer viruses.
Throughout the pandemic the UK Data Protection regulator, the Information Commissioners Office has assured businesses that they intend to take a pragmatic approach to data protection breaches that have occurred, but with a return to ‘business as usual’ this grace period is unlikely to continue for much longer.
As a result, employers should consider now running data protection refresher training for staff to remind them of what they can and cannot do with personal data, what constitutes a breach and how this should be reported internally and the short timescales that apply. Such training can also cover a review of the employers own policies and procedures and the importance of staff ensuring that they adhere to them, even when at home. For example, still complying with clear desk policies and ensuring that sensitive information is locked away when not in use and being aware of confidentiality issues when working from a shared house or in a coffee shop.
Employers could also consider asking employees to ensure that any confidential waste that has accrued at home during lockdown be brought in to the workplace and securely disposed of.
The ICO also recommend that a Data Protection Impact Assessment (“DPIA”) is undertaken to consider the implications of employees working from home. This helps to analyse, identify and minimise data protection risks. Whilst many employers will not have done this at the outset of the pandemic, if they are now intending to introduce home working on a more permanent basis, at least some of the time, it is recommended that employers now conduct a DPIA. It is likely that the ICO would take a dim view of a business that suffered a breach without having taken appropriate steps to avoid such an issue, or at least having considered the risk of it in a DPIA.
Equipment audit
When the pandemic hit in March 2020, many employees fled their workplaces with their computer equipment, or it was sent on to them at home.
As a result, if an employer does intend to keep a mix of home and usual workplace working, it may be necessary for additional equipment to be purchased to allow for this, rather than it all being in one place and needing to be carted back and forth depending on where the employee is working.
An equipment audit will help employers and their IT teams identify what equipment is needed to ensure hybrid working is as successful and productive as possible.
Health and safety
Employers remain responsible for their employee’s welfare and health and safety whether they are working in their usual workplace or from home. As a result of the fact that changes were made to normal working arrangements on an emergency basis in response to the pandemic, many employers will not have investigated their employees working environment at home.
However, if hybrid working is to be introduced on a permanent basis, employers should conduct risk assessments to consider the desk, chair or other furniture being used by employees, whether there is sufficient lighting and potentially, the risk of mental health issues being caused as a result of employees feeling isolated from their colleagues through long term home working.
Employers may also want to consider amending employment contracts to include a right to enter employees homes in order to conduct such risk assessments, repair IT equipment or remove it on termination of employment.
Flexible working requests
Pre pandemic most employers are likely to have been opposed to granting flexible working requests from employees asking to be permitted to work from home for some or all of the week. However, COVID-19 has meant that for many organisations working from home has been much more successful than they would ever have imagined.
As a result, it may be more difficult for employees making flexible working requests asking to be permitted to work from home to be rejected in the future. Employers will need to think very carefully about the reasons they give for refusing such requests, in order to avoid future Employment Tribunal claims.
Conclusion
Undoubtedly the pandemic has caused employers no end of problems. However, even with all restrictions being lifted, the challenges for employers are far from over. With Employment Tribunal claims rising back to record levels and the risk of reputational damage as a result of such claims, a data protection breach or health and safety issue, the importance of employers protecting themselves against such matters and ensuring they have their ducks in a row, has never been higher.
For more advice on the changes you should be making to your employment documentation please contact us on 0345 646 0406 or fill in our online enquiry form and a member of our Employment Team will be in touch.