The UK Government has instructed the general public to work from home. However, for the majority of businesses across the UK this may not be possible. Employers may not have the infrastructure and employees may need to be on location to work. Following these challenges, Samuel Okoronkwo of Mercantile Barristers gives some guidance in this blog about the best way for employers and employees to manage the UK Government’s recent advice.
WHAT IS WORKING FROM HOME POLICY?
A working from home policy is usually created by the employer and details the circumstances where employees may be able to work from home, as opposed to an office or a specified location agreed upon in an employment contract.
It will cover the criteria to assess whether working from home is practical, effective and meets the employee’s obligation pursuant to the employment contract in question; as well as how and to whom you can apply to do so. It may also explain what is expected from an employee who works from home, including how the employee may be managed remotely. The policy should also set out any taxation implications; security of the employee’s confidential information; and any health and safety measures that need to take place.
WHO CAN WORK FROM HOME?
Not every employee is able to work from home and this is subject to the employer’s discretion and general practicalities of the employee’s role. This will especially effect those who are required to be at specific locations in order to fulfil their job role, such as employees at building sites, delivery drivers, taxi drivers, entertainment and hospitality staff, to name a few.
It is also necessary to consider whether an employee is suited to working from home and this may be determined after a probationary period in the first few weeks/months of employment. This can be as a result of individual attributes including an employee’s self-discipline, an employee’s ability to separate home and work life, and the employee’s motivation to be able to work alone for long periods of time without supervision.
THE LEGAL IMPLICATIONS OF WORKING FROM HOME
Pursuant to the Flexible Working Regulations 2014, since 30 June 2014, any employee who has been continuously employed for 26 weeks has a right to make a request for flexible working, whether this has to with hours, times or place of work. An employer can however refuse a request but it can only be based upon objective business grounds. An employer must be careful not to inadvertently discriminate against an employee based upon a protected characteristic identified in the Equality Act 2010. For example, refusing homeworking to a person with a physical or mental disability, despite the business impracticality, may still place an employee at a disadvantage when compared with others.
An employer is also under a duty to make any reasonable adjustments for an employee who may have a physical or mental disability. Working from home can be considered as a reasonable adjustment, as it can assist an employee to continue their normal day-to-day activities.
HEALTH & SAFETY AND INSURANCE
According to Samuel Okoronkwo, employers have a legal duty to care for the health and safety of their employees, even when they work from home. The employer has a responsibility to carry out a risk assessment to ensure that conditions at home are suitable for work. This can include assessing lighting, ventilation, temperature, chair, desk, and work station. The employer must ensure the space is adequate for the type of work that the employee does. Once the environment has been assessed, it is then down to the employee to ensure that conditions remain suitable, and to alert their employer should this change.
It may also be necessary to confirm with an employee’s mortgage provider, landlord or insurer if either will allow working from home. For example, it will be necessary to verify whether an insurer will still pay if any work equipment is damaged or stolen, whether any premiums will rise as a result of working from home, and finally whether an employer will pay for any increases to premiums.
In some cases, planning permission may be required to work from home, and it is usually the employee’s responsibility to ascertain this information. However, where working from home is part of an organisation’s business model, then employers should consider offering employees assistance in this regard. There could potentially be tax implications when working from home. An employee may have to pay business rates, although this is quite unusual. Keeping confidential information pertaining to the organisation may be a consideration and employers should think about ways in which an employee can protect such information from theft.
THE EMPLOYMENT CONTRACT
The Employment Contract should identify the relevant Working from Home Policy as required and whether it applies to that employee. There is no reason why an employee’s salary should change, if they continue to carry out the same role, with the same level of responsibilities and the same number of contractual hours, but if it does it should also be identified in writing in the employment contract. If an employer and an employee are able to agree to a change in the terms of employment as a result of working from home, then this change must be made in writing preferably before, but if not, as soon as possible after the change has taken effect.
If you are an employer or employee and require advice from our barristers on working from home and especially drafting a suitable Working From Home Policy, please get in touch by booking a consultation with a barrister; email us at clerks@mercantilebarristers.com; or telephone us on 0203 034 0077