The COVID-19 pandemic and the measures put in place in response in countries around the world – including the United Kingdom – have compelled employers and employees to adopt a new vision for work. Countless businesses have survived during the crisis by having employees conduct their work from home.
Now, one year after the pandemic began, home-office remote work has proved so effective, it is being considered for the post-pandemic future. But remote work raises a host of legal and administrative challenges. This article – based on the 8 December 2020 webinar The Future is Now: The New World of Work in the UK and hosted by employment lawyers Gary Henderson and Eleni Sideris with CMS UK – discusses how telework and home-office work impact the traditional workplace, and explores the challenges that these forms of employment pose for workers and companies, both now and in the years to come.
Homeworking in the United Kingdom
There is little doubt that COVID-19 has fueled the practice of Homeworking in the United Kingdom. But according to Gary Henderson, a Partner and employment lawyer with CMS UK, the pandemic simply "accelerated" a process that was already underway. Attitudes towards Homeworking bear this out.
Several studies support a desire by the majority of workers to have increased flexibility in how they work. One study showed that in April 2020, 46.6% of people in employment did some work at home. Of those who did some work from home, 86% did so as a result of the pandemic.
Another showed that only 11.8% of employees want to return to the office with no form of Homeworking and that 75% of employees want a balance of working from the office and home after the pandemic has come to an end.
"There are many studies, but I think the message is clear," explained CMS's Henderson, "many more employees now want to work from home after the pandemic."
Henderson points out that Homeworking may also become the preference of more employers as there are opportunities for them, which begs the question: what are the pros and cons – the opportunities and challenges – of Homeworking?
According to Henderson, the opportunities include the following:
An improved lifestyle for employees (since employees if they work from home, explains Henderson, "can now live where they want to live as opposed to living close to work");
Flexibility that enhances employee convenience (particularly, vis-à-vis personal duties such as childcare) whilst some have argued that there are improvements in productivity as a result of less distractions/interruptions compared to being in the office;
Employees are saving time and money by not commuting to work at no extra cost to employers;
Environmental sustainability (large-scale Homeworking potentially reduces commuting, and therefore traffic and pollution);
Wellbeing and reduced stress levels for employees;
Overhead cost reductions for employers (in terms of paying for office space and utilities);
Greater flexibility in recruiting for employers, since they no longer need to limit candidate selection to those who live near their offices or are willing to move.
But Homeworking does not come without its challenges, which include:
Not all companies currently utilising Homeworking are willing to continue this system post-pandemic, which may be difficult to explain to employees hoping to continue remote work;
Worker isolation and a loss of a "team connection", resulting from the absence of regular contact between employees;
Remote work, although convenient for many, arguably reduces engagement between workers and could affect collaboration and the development of leadership skills. Office-based work also has particular benefits for junior staff who benefit from supervision and new team members who might be able to settle into an organisation more quickly in person;
Solving the issue of salary levels based on where an employee is working (e.g. would the salary increase that traditionally goes to employees working in London still be applicable if a business is London-based but the Homeworking employee is located outside the city?);
Monitoring and ensuring the wellbeing and mental health of Homeworking employees since remote working poses its own stresses and pressures;
Ensuring that Homeworkers have the same opportunities for professional advancement as employees based in the office;
Ensuring the security and protection of sensitive data in the Homeworking environment.
Although some companies are willing to postpone permanent decisions about the future of Homeworking in their organisation until after the pandemic, other companies – facing lease renewals of office space, etc. – must act now to implement Homeworking over the long term.
CMS's Henderson states that the legal ramifications of putting Homeworking in place depends on whether it is being imposed on or requested by employees, and whether the Homeworking model under consideration is a hybrid of remote and office work.
Employer imposed Homeworking
To impose Homeworking, contracts will have to be modified and employees must consent to the new arrangements or face the prospect of redundancy. This could also trigger the requirement to collectively consult with employee representatives depending on the number of employees who will be affected.
The more flexible model of the Homeworking and office-working hybrid is likely to be an easier sell for employers, and far easier to implement. Employees are likely to be happier with this proposal since it will afford them more freedom and flexibility to establish a work routine that best suits them. For example, if they wish to work full time from the office then they will be able to so; Homeworking is not being imposed, it is a choice.
Employee requested Homeworking
In some instances, employees may request a Homeworking arrangement from a company that would prefer that its employees remain onsite.
There are statutory provisions allowing employees to make flexible working requests in the UK after 26 weeks’ service but there also fairly wide grounds enabling employers to turn down those requests. In broad terms if agreeing to the request would genuinely adversely impact the operation of the business in a material way then there is likely to be scope to turn down the request.
Whilst the statutory provisions have limited teeth – the sanction for employer non compliance being 8 weeks’ pay capped at £544 per week – there would potentially be scope for an indirect sex discrimination claim in particular by a woman if the request is turned down and also a direct discrimination claim by a man if requests by women are routinely agreed to but not by men. There is no length of service requirement for a claim and compensation is uncapped.
Henderson points out that to date where an employer has properly considered the request and has legitimate and proportionate business grounds for turning it down, then there has often been limited scope for an employee to succeed in a claim. But the pandemic may have changed this.
According to Henderson, what has changed is that effectively pandemic Homeworking has been a very long trial period of Homeworking and, to the extent people have worked very effectively from home and could realistically continue to do so post lock down in a back to normal business environment, employers may now have fewer grounds available to them under the flexible working regime to turn down remote working requests and, even if they can, they may still risk discrimination claims.
That is not to say all employees who want to work from home will be able to do so, it will depend on the specific facts including the needs of the business. If it really won’t work for the business then there is likely to be scope to turn down requests.
But where Homeworking is being implemented, a host of other issues must be considered to make it work.
Issues created by Homeworking
According to CMS Associate and employment lawyer Eleni Sideris, these issues include:
Expenses: what costs incurred at home is an employer required to provide compensation for?
According to CMS's Sideris, there is currently no general obligation for companies to pay for home-office costs. They can choose to do so by paying expenses or providing an allowance. There is no general legal obligation to provide particular equipment to home workers. However, for security purposes and to ensure access to company systems, an employer may wish to provide home workers with a company laptop or computer. Any equipment provided to home workers should be provided on the basis that it is for work use only, both for security reasons and because the equipment may otherwise be treated as a taxable benefit.
Effective supervision: Homeworkers should be supervised and appraised like any other workers.
Homeworkers might be concerned that managers or colleagues suspect that they work less (or less effectively) than workplace-based colleagues, so thought should be given to how the company will measure the quality and quantity of the home worker's output. A suitable reporting and appraisal system should therefore be considered, building in sufficient opportunity for reviews of work progress, involvement in projects, levels of performance, expectations and any difficulties that either the home worker or their manager consider should be addressed
Equal Opportunities: recent studies have shown mothers are more likely than fathers to be spending their working hours simultaneously caring for children during the pandemic. Whilst this should ease once caring arrangements return to “normal”, we know that even pre-COVID-19, women had more caring commitments. It may be the case that long-term, Homeworking is more appealing to women.
Sideris points out that the convenience of Homeworking for many women may lead to gender inequalities where offices in the future are predominantly populated by men. This imbalance could create systemic biases where men are favoured (due to their simple proximity to managers) for advancement and work allocation. Sideris said employers can avoid these negatives by promoting effective communications with Homeworkers and encouraging all workers to alternate between home and office so that every employee is on an even footing.
Data protection: how can employers ensure that sensitive data contained in Homeworking devices (e.g. laptops, tablets, phones) are secure and protected?
It will be important to ensure that Homeworkers are using sufficiently secure equipment to work, that they understand the importance of data protection compliance and that the employer’s data security policies and procedures adequately cover home working practices.
Insuring Homeworkers: how can insurance be applied to the Home office?
It is mandatory for employers to have Employer’s Liability Insurance. Every employer carrying on business in Great Britain must maintain insurance (with an authorised insurer) against liability for bodily injury or disease sustained by its employees and arising out of and in the course of their employment in Great Britain. An employer's policy should cover employees working from home. An employer should check the terms of other key insurances to ensure that homeworkers’ activities are covered. For example, data protection insurance may not currently cover data breaches that take place in employees’ homes.
One product of the pandemic has been the request by many workers to be allowed to return to their homes abroad and conduct their remote work from there. Before granting such a request, an employer must be aware of the implications including the following:
Immigration: can the employee conduct work abroad based on their immigration status and the rules surrounding it?
Tax and social security: how are these considerations impacted by the employee's presence abroad?
Permanent establishment: does the employee's presence in the jurisdiction abroad create a permanent establishment in that jurisdiction for the employer?
Data protection: can sensitive company or personal data be protected in or transferred to another country, and does the country in question have data protection regulations (or a lack of regulation) that must be considered?
Employment rights: what rights in the jurisdiction abroad does an employee enjoy in this situation?
Risk assessment: an employee working in a location abroad should ideally be completing a homeworking health and safety risk assessment to ensure that risks are identified and steps taken to minimise them. There may also be local laws which apply in these situations which also need to be considered.
Insurance: employers should ensure company insurances are not impacted (or invalidated) by employees working abroad.
The solutions and answers to these considerations depend on various factors: the country the employee will be working in, the citizenship or immigration status of the employee, etc. Employers should consider each of these factors carefully when assessing staff-mobility issues.
Health and Safety
Employers have an obligation to ensure the health and safety of all employees, including those operating in the Homeworking environment.
This is regulated by the Health and Safety at Work Act 1974, which requires employers to "ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees." Employers have other health and safety obligations including providing a written health and safety policy and carrying out (and acting on) risk assessments.
As regards risk assessments, in order to manage the health and safety of employees or those coming into contact with a business, employers must identify and control any risks within the workplace. Employers must ensure that they are taking all reasonable steps to prevent harm arising from the identified risks and record how they have done so. Sufficient ongoing supervision and monitoring should occur to ensure implementation of the control measures and to identify any additional measures required.
Health and Safety rules for Homeworking employees
Employers must ensure the health and safety of their remote workers and should consider in particular:
How they will keep in touch with them?
What work activity will they be doing (and for how long)?
Can it be done safely?
Do control measures need to be put in place to protect employees?
Working with display screen equipment. Under the Health and Safety (Display Screen Equipment) Regulations 1992, employers have a duty to protect employees from the health risks of working with display screen equipment, such as laptops and monitors. This can be done through employees carrying out workstation assessments at home. Employers should provide workers with advice/training on completing their own basic assessment at home.
Despite the challenges, recent breakthroughs in technology and digitalisation have paved the way for Home-office work during the pandemic. Widespread Internet access, laptops, state-of-the-art business and communication applications, Smart phones and other tools have made Homeworking possible.
Advances in electronic signatures, which reduces the need for physical meetings to conclude contracts, have helped facilitate Homeworking.
Artificial Intelligence (AI), can be used to monitor worker effectiveness and productivity, including when Homeworking. Despite AI's potential to do this, employers need to carefully consider the privacy and data protection implications as well as the possibility of discriminatory practices contrary to legislation.
For more information on implementing Homeworking in the UK in a way that minimises risks and maximises efficiency, contact your CMS partner or local CMS experts: Gary Henderson, Eleni Sideris.