Life after Coronavirus is likely to look very different for a number of reasons, one of which is that a large proportion of the workforce has now been working at home for several months. Whilst I am not aware of any official research, anecdotally, I would suggest that at least 50% of the people I'm speaking to have no desire to return to the office at all. But whilst working at home may be a great deal for employees (who doesn't love only having to get dressed from the waist up every day?), what consideration should an employer make before considering continued homeworking arrangements? Does the fact that you have allowed homeworking during Coronavirus mean that you are now bound to continue the arrangement going forwards?

Do you need to continue homeworking?

I would start by saying that Coronavirus has clearly been a novel and extreme situation. I do not consider that an employer is bound to continue homeworking arrangements beyond the end of lockdown, when the government advises that those who can work from home may return to the workplace. This is particularly the case because many employers at this time will have sacrificed some level of productivity in order to keep their business going through the crisis. Many businesses will also have experienced a downturn in work, and will not have tested their employees’ ability to work at home when the business is operating at full capacity.  Essentially, what works now, and what employers willing are to put up with for this period, is not necessarily what is best for the business long-term. I do not therefore consider that you are obliged to continue homeworking arrangements just because that is what the employee would like. If your business cannot manage efficiently with employees working from home, then you are not obligated to allow them to do so.

However, if you are minded to consider homeworking as a long-term arrangement, there are a number of factors that you might wish to consider, aside from whether the situation is workable.

What duties do you need to consider?

You must at all times bear in mind your duties to your employees.  This includes your contractual duties (meaning you probably need to read the employee’s contract before making any decisions), as well as implied duties such as the duty of mutual trust and confidence, your health and safety obligations and your duty not to discriminate against employees.

Set out below are just some of the questions you will need to ask yourself before entering into a long-term homeworking arrangement.

Does the employee have the right setup?

As from the employer's perspective, there is much that an employee is willing to put up with for a short time during this global crisis, that is realistically impractical going forward. For example, whilst your employee might currently be working from their kitchen table (or sofa, or bed) if the homeworking arrangements are going to continue long term, is that an appropriate setup? You must consider your duty of health and safety. Whilst your employee is carrying out your work, your duty of care extends to cover them in their own home. Do they have or need a proper chair and desk? Do they have appropriate electrical equipment? Is the equipment safe for their use? 

As well as the physical set up, are they legally set up to work from home? Are they covered by your insurance if they suffered an injury?  Would they be covered by their own insurance?  Is working from their home a breach of their mortgage obligations, or for renters, their lease?  These are things many do not consider, but the consequences of not having the legal arrangements in place can be severe.

What about intellectual property?

Who is going to provide the equipment for the employee to use? If the employee is going to use their own, are you going to contribute to the costs? Do you want your employee using their own IT equipment? I would take this opportunity to give a word of warning on allowing this, as it is likely that employees working from home on their own equipment will amass a large amount of confidential information on that equipment. It is very difficult for you to monitor the use of that confidential information, and ensure its return at the end of the employment relationship. It should be remembered that it is an offence to access an employee's own computer without their specific consent.

How do you know they’re working?

How are you going to monitor the employee? As I say above, many employers have sacrificed some productivity in order to keep their business going i.e. they have simply accepted that (in some cases) employees are probably going to work fewer hours and be less productive from home than they would be if they were in the office. If that is the case, can it be allowed to continue in the longer term?

If not, are you going to require set hours, or minimum hours?  How are you going to monitor those (especially if the employee is on their own computer, bearing in mind the monitoring difficulties set out above). Does the employee's pay structure work for homeworking?

 Alternatively, do you not mind when the employee is working, so long as work gets done? If that is the case, it should be communicated clearly to the employee what your expectations are as to what work you are expecting, and what you consider is “done" to avoid any ambiguity.

On the other hand, you should also be careful not to over-manage employees.  Firstly, excessive monitoring may be a breach to the employee's right to privacy. Secondly, excessive management and monitoring may be a breach of the duty of trust and confidence, giving rise to claims for unfair dismissal.  If you honestly cannot trust an employee to work from home (and you have a genuine, non-discriminatory basis for your beliefs) then refusing homeworking requests may be the easier route to dealing with the problem.

Do your documents need updating?

Finally, you should consider your policies. Do they still apply? If so, that must be communicated to the employee.

Do they need amending? If so, a specific home working policy should be issued and signed for by the employee.

In particular, sickness and holiday are areas of concern for employers and employees alike. The employer needs be notified in the usual way of periods of sickness and holiday and to know if the employee is working or not. 

For the employee, they need to be able to take proper breaks, and take holiday and sick leave as if they were in the office. Mental health cannot be underestimated and the difficulties in maintaining a work/life balance when working from home can be destructive for some employees. Periods of sickness and holiday in particular need to be managed, how can you ensure that the employee gets a break if, for example, all of their calls are diverted to their mobile phone?

Summary

In summary, many are suggesting homeworking is the future, and the traditional office-based workplace is unlikely to continue. However, where businesses are considering more flexible working arrangements, there are the duties and obligations owed to employees, as well as good business practice to be considered.  This article covers just some of the considerations that should be taken into account before implementing homeworking arrangements.  If homeworking is new to your business, it is worth taking specific advice about your duties and obligations to ensure that you have covered all bases.

Should you have any queries about the issues raised in this article, or on any employment related matter, please contact our expert Arvin Sandhu by email or on 01494 893 542.