What legal issues around working remotely do startup founders and their employees need to be aware of? Deborah McGargle, Chief Legal Officer at SeedLegals, answers the important questions.
Up until recently, there were still very few people who worked from home, so much so that the status of “homeworker" is yet to be defined in law. This has changed beyond all recognition where most of the population now work exclusively at home. But how does this change impact employment contracts and what changes, if any, need to be made?
Do employees require a new contract and what would it cover?
Temporary working from home can be addressed by a simple written variation to the employee’s existing employment contract, where the ability to work from home isn’t already recognised. The variation might also cover a temporary adjustment to working hours. For example, some employees might favour an earlier start which would ordinarily be used as commute time. An employer should try to be as flexible as possible.
Where working home from becomes a more permanent change, it might be prudent to issue a new contract so that provisions such as place of work, hours of work, benefits, expenses, reporting illness, confidentiality, the use of equipment, the right to enter and the right to revert might be considered in more detail and specifically tailored on a case by case basis.
Do employees’ legal rights change in any way?
Homeworking does not result in a change to an employees’ legal rights. Their usual terms and conditions still apply, apart from the place of work reference. Employers should take care so that the salary and benefits package provided to a homeworker are not less favourable than those provided to comparable employees. If they are treated less favourably, a homeworker may have a claim under discrimination legislation.
Homeworkers should have the same amount of holiday as comparable office-based workers and will be entitled to a full time minimum of 5.6 weeks' paid leave (regulations 13, 13A and 16, WTR 1998) (pro-rated if they work part time). The employer should make clear that its usual arrangements for requesting and approval of holiday will apply.
Should you create a new remote working policy and what should it address?
Remote working guidelines in the form of a policy might not have been at the top of an employer’s list in the past, but there is no time like the present to implement this. The policy should cover off matters such as:
- Home environment and working arrangements
- How to apply for home working
- Working at home: equipment
- Working at home: data security and confidentiality
- Working from home: Health and Safety
The top three legal issues an employer should be aware of about employees working from home
Health and safety
By law, employers are responsible for the health and safety of all employees, including those working from home.
During the current crisis, it's very unlikely that employers can carry out usual health and safety risk assessments at an employee's home. However, an employer should still check that:
- each employee feels the work they're being asked to do at home can be done safely employees have the right equipment to work safely
- managers keep in regular contact with their employees, including making sure they do not feel isolated
- reasonable adjustments are made for an employee who has a disability
It's highly likely that employers and employees are experiencing a high level of stress and anxiety at the moment. It's important for employees to take regular breaks, for example to avoid sitting at a computer for too long. They should also try to do other things to stay mentally and physically active outside of their working hours. It is crucial to establish the boundaries of working time, and, in particular, when the homeworker will be available. The Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) lay down, among other things, maximum weekly working hours and minimum rest breaks. Since no one will oversee whether homeworkers take their breaks, the employer should make it clear that homeworkers are responsible for regulating their own working time and taking breaks as appropriate.
Equipment and technology
Employers are responsible for the equipment and technology they give employees so they can work from home.
The employer should:
- discuss equipment and technology with the employee
- agree what's needed
- support the employee to set up any new equipment or technology
If a homeworker is to be using computer equipment supplied by the employer and will have access to the internet and/or email facilities, the employer will need to consider the application of any systems it has in place for policing the use to which the homeworker might put the facilities at their disposal. The employer will also need to satisfy itself that the risk of a data security breach is low, possibly by way of a data privacy impact assessment.
Any equipment provided by the employer will need to be covered by the employer's insurance policy, if that is possible. If this is not possible, the employer should require the employee to take out and maintain satisfactory insurance cover. If this involves additional cost (over and above that of a standard home insurance policy), the parties may agree that the employer will reimburse the costs involved.
If an employee also has some work tasks that can be done safely away from their home, the employer should make sure they have access to the right equipment for those duties.
Setting clear expectations
Changing to homeworking may be a challenge for many managers and employees, particularly if they're used to working together face-to-face. It's important to build up a healthy relationship of trust and confidence. Employers and managers should make sure that everyone working from home knows what's expected of them.
This includes agreeing:
- when employees will be available to work
- how they will keep in touch
- how work-life balance will be managed, for example taking regular breaks and switching off from work at the end of the day
- rules around storing information and data protection
- how performance will be managed and measured - taking into account people's circumstances where necessary
- who employees should contact if they have any problems or their circumstances change
It's important to recognise that some employees may find it hard to motivate and organise themselves when working from home. If this happens, the manager and employee should talk about practical steps that might help.
Employers and employees should keep in touch regularly. This should include regular communication between:
- individual employees and their managers
- employees who need to work together
- team members