On 19 July 2021, the government removed guidance that recommended that workers based in England should continue to work from home where they can. For some, a return to the office will offer a sanctuary, as a lack of a proper working environment and Microsoft Teams fatigue will have taken its toll and tested the patience of many. For others, this will mean the end an era, which for the past 15 months, has meant comfortable clothing, family dinners and avoiding rush hour commutes – something not easily given up. Equally, many employers are realising that businesses can thrive as they did pre-COVID without everyone being in the office.
Before the COVID-19 pandemic, hybrid working probably didn’t mean much to many employers, however, this working arrangement is being considered by many as a useful tool to balance the benefits of working remotely and office based working. According to a survey published by Acas, over half of employers in Great Britain are expecting an increase in requests for flexible working.
Acas has also recently published guidance on hybrid working which summarises issues for employers to consider such as how to support and manage workers, continuous assessment of the situation and creating a suitable policy (Hybrid working | Acas). So what should employers be aware of if considering whether to offer hybrid working?
Amendments to contracts
An initial consultation with workers is an opportunity to explain what is being considered and why, as well as an opportunity to assess suggestions and listen to any potential concerns that workers’ might have about returning to the work place. This will also inform the decision of which roles could be considered for hybrid working. The last 15 months have given people a wide range of experience in different methods of working and so engaging with the workforce could help shape what hybrid working looks like for a particular business.
The employment contract in its current form should be considered. Does the contract allow for flexibility to amend the individual’s place of work? If an employer wishes to amend the place of work, or specify which days the individual would be required to attend the office/ work from home, it may be necessary to add or amend mobility clauses to allow for this flexibility. Employers should consult with workers and/ or their representatives on substantial changes to the terms of the contract. This will include changes related to place of work and patterns of working. Any changes to the terms and conditions of employment should ideally be made with the consent of the individual. While this won’t be an issue if the individual requested a hybrid working arrangement, problems may arise if the change proposed is one that the employer is enforcing, against the will of the individual. In this case, if consultation fails, it is may be possible to unilaterally impose changes however, there is a risk that this may trigger a claim for unfair dismissal (including constructive dismissal), and so an employer considering such action should seek legal advice at an early stage and before implementing any changes.
Employers need to ensure that anyone who is working from home is not treated any less fairly or subject to any detriment because of a protected characteristic under the Equality Act 2010. One potential scenario is when workers with childcare responsibilities, who are statistically, still predominately female, opt to work from home and suffer some disadvantage, perhaps in the form of lack of opportunity for training, development or promotion. For that reason, employers should ensure that all workers, whether working from home or the office, have access to the same opportunities, work and support.
Similarly, there is a risk of indirect discrimination where an employer’s approach to hybrid working may adversely affect a certain group of individuals with protected characteristics, for example, having a workplace rule or policy requiring all junior members of staff to work in the office while all senior staff are able to work from home. This would likely amount to a provision, criterion or practice which puts individuals who share a protected characteristic (age, as juniors tend to be younger) at a disadvantage compared to those who do not share that characteristic. Such a policy or practice would not be discriminatory if the employer could show that there was a legitimate business aim and that their approach was justifiable and a proportionate means of achieving that aim.
Health and Safety
Whilst it is clear that employers have a common law and statutory duty to ensure a safe working environment within the workplace, do the lines blur when the workplace is a worker’s living room? The short answer is, no. Employers are still responsible for a worker’s welfare, “so far as is reasonably practicable” according to section 2(1) Health and Safety at Work Act 1974 and must still carry out suitable and sufficient health and safety risk assessments of all work activities and working environments, regardless of whether they are in the office or working from home. Having said that, workers also have a responsibility to take reasonable care of their own health and safety while at work.
This will include complying with the requirements set out in the Health and Safety (Display Screen Equipment) Regulations 1992 (SI 1992/2792) (DSE Regulations) which aims to control the risks associated with workers who habitually use DSE as a significant part of their normal work. The DSE Regulations cover the analysis of workstations, the provision of eye tests and the provision of other information to workers.
Whilst generally, there is no legal obligation on employers to provide the necessary equipment, it is expected that employers will provide this to enable the individual to work from home e.g. a computer or a printer, for the reasons stated below. This equipment should be provided with the above duties in mind.
Employers should also bear in mind that it may be necessary to amend any existing health and safety policies to reflect any changes in working practices.
The UK GDPR and Data Protection Act 2018 will apply to those that work from home. This inevitably brings with it an increased risk of data protection breaches, as confidential information which, previously would have been stored securely at the workplace, may now be more easily accessed by third parties and compromised. Employers should consider the following when allowing work to take place from home:
- Is the worker working from a shared computer?
- Will the worker be leaving their IT equipment unattended? If so, who else lives with them? Will this IT equipment be password protected?
- How are sensitive documents being transferred between home and the office?
- Are paper files being kept in a suitable storage space at home?
- How are sensitive documents being disposed of?
These concerns can usually be addressed with the provision of equipment (e.g. a shredder and a work computer which is password protected and encrypted in the case of loss) and the appropriate training to alert individuals to good practice as well as regular reminders about obligations to safeguard personal data. The ICO has provided further guidance in complying with data protection regulations while working from home (Working from home | ICO).
The employment team at Wedlake Bell advises on all aspects of employment law. If you are a business in the process of getting your workforce back to the office and you need advice on any of the issues raised in this article, please do not hesitate to contact us.