Written by wilford-smith
Blog Employment Law
It is expected that the majority of employers will now be looking at returning to normal as soon as possible. But, having had the opportunity to trial alternative arrangements for well over a year, some employers may also be carefully considering whether a ‘new normal’ will be more beneficial to them moving forward.
There may be a number of reasons for this, for example, reducing office space and overhead costs, creating a hybrid working model to allow for a better work/life balance, or perhaps simply avoiding the disruption that may be caused through isolation requirements. The reasons will be individual to each business and will depend on whether making changes to their historic position works for them. HR Managers and HR Consultants will no doubt be working closely with Heads of departments to explore options. However, the process is not without risk.
Whatever the reason may be, if an employer does decide that they want to make changes to the pre-Covid position, there are a number of legal considerations that must be taken into account.
During the height of the Covid-19 pandemic, when the measures in place were new and there was no time to prepare for employees working from home, a number of things that should have been done were not, and initially, that was not much of an issue. However, if that is to become the permanent position, any arguments relating to Covid will no longer hold any weight or offer any protection or leniency.
We have identified a number of areas where employers will now benefit from putting in place proper policies and procedures in order to protect both their employees and them moving forward with a new working from home model. This is not an exhaustive list and there will always be factors specific to certain businesses, or even certain individuals, that may mean additional considerations are required.
These areas will include, but are not limited to:
- Ensuring that proper workstation assessments are carried out as they would be in the workplace. It is vital that you check that the working area of those employees working from home is safe and doesn’t present any risk to their health. For example, in some more extreme circumstances, employees may be working whilst in bed, or sitting on the sofa. This can present issues for their back and neck and could lead to long term problems. You should be checking not only that employees are working in a proper environment as well as providing them with the equipment to do so. That will include not only IT equipment and monitors but also chairs, footrests and even desks where appropriate. These assessments should also be updated regularly. Updating any policy you have in relation to this will also be very important as it will allow employees to understand what might be required from them in terms of information and it will also give those carrying out the assessments something to refer to in order to ensure consistency from assessment to assessment.
- In addition to the above, you will need to ensure any DSE assessments continue to be carried out and that there is a system in place to ensure that these can be done thoroughly. Whilst there should be no additional requirements for your employees in relation to DSE, as there would be no additional risk to working in the office, it is important that employers do not let these matters slip to the detriment of their employees. Updating your policy on this to include the protocol when working from home is important.
- You will need to consider whether your employees need to be provided with any PPE. It is unlikely that they would need this to work from home of course, but if they are expected to travel as part of their role and visit other businesses or other locations, it may be appropriate to make sure that they are sent regular supplies of PPE. This may include hard hats, steel toe-capped boots and safety goggles, as well as face masks, gloves and sanitiser to comply with any restrictions in place at a certain location. Again, updating any policy that you have on this is also important as it sets out what you can and cannot provide and allows those that need to make orders and send the PPE out to check whether requests are in line with policy.
- You may also need to consider as an employer how your employees will access any support they may need, in particular in relation to IT issues. When employees are in the workplace it is easy for them to seek face to face assistance with matters such as this, but when working from home that would not be possible. There may be systems in place as a result of the pandemic, but now is the time to cement these into policy. Make sure that your IT departments or support companies have relevant access to the resources required to assist employees remotely, and if equipment needs replacing you will need to make sure that there are plans in place to replace it promptly and easily, particularly when disruption is exacerbated when an employee is working from home and there are no immediate replacements available.
- Finally, one of the more important considerations will be Data Protection and confidentiality. During the height of the pandemic and the government’s work from the home message, it is likely that data breaches may have been considered with a lenient approach given that the vast majority of businesses across the country had in place temporary measures and were operating in unprecedented times. However, as the restrictions ease and once businesses have made an active decision to continue with a focus on working from home, that lenient approach is unlikely to continue. This will place significant emphasis on employers putting in place policies and protections that allow them and their employees to keep data safe and confidential. This could include, but will not be limited to, ensuring that electronic devices on which such data is stored are encrypted and can be wiped remotely should they be lost or stolen, providing training to employees on what they need to do to keep data safe whilst it is in their control and making sure that data is properly deleted when it is no longer needed. The punishments for data breaches can be significant and will be against the employer and not the individual, so making sure you do everything you can to keep data safe is essential.
As you will see, it is important to make sure that you are prepared for a permanent move to home working, whether that be full time or on a hybrid basis. There are a number of things that you can and should do to get this right.
Also, you will need to be mindful that making permanent changes to contracts is something that requires a proper legal process. Employers will need to follow a full contract variation procedure which will include a detailed consultation process with staff. HR Managers and HR Consultants should be careful and mindful that getting this process wrong can lead to substantial unfair dismissal claims. When changing the contracts of 20 or more staff there are special collective consultation procedures to follow. Getting this wrong can result in protective awards of up to 13 weeks’ pay per employee.
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