What is the contractual position of this? Can these terms be changed? Are there any health and safety concerns?
Employers must first look at any contractual rights to work from home if you are responding to a proposal by your employer to work form home.
Due to covid these temporary changes to the terms have been implemented to cover the lockdown period, allowing for individuals to work from home. Ad hoc work environments have also been introduced. To implement working from home arrangements, a written agreement may have been written or an exchange of emails from the employer to the employees stating the arrangement passed around, however it is not yet clear whether those requirements need to be met, even though the ERA s 1(4)(h) states that employers are required to specify the place of work or, where the worker is required or permitted to work at various places, an indication of that and of the address of the employer is needed.
Pre-existing mobility clauses, which looks at employees relocating, had never in the past taken into account the possibility of a whole workforce working from home, and clauses like these should be critically observed, to determine whether employers can use this clause in the future for full time home working environments or ad hoc environments (working 2 days at home and 3 in the office).
Changing the terms:
To change the terms to an employees work environment, under ERA s 4, the company must issue a written statement of the changes.
An ad hoc working environment may be desirable for most people due to the flexibility that it allows. This work environment can be trialled without being implemented officially. This form of working may affect the employer negatively in terms of the administrative and logistical burden, and in turn may not be a popular option. However, there is no harm in proposing a trial of ad hoc working environments before returning to normal work environments.
It should be noted that in the absence of an agreement, an employer introducing new work environments risks breaching the terms of an employees contract and so should make clear any changes that will be made, employers may provide employees with new contracts that include the ad hoc working plan. This would require notice and runs the risk of employees claiming for unfair dismissal and could potentially fall into the definition of redundancy.
If the changes proposed for permanent working from home environment or hybrid working is agreed, policies within the company must be revised and take into account expenses that may be incurred by the employees themselves, in relation to supplies, broadband and telephone costs. Employers must consider whether they will cover these costs and provide IT equipment needed to work from home. Employers can use ACAS guidance, which provides an example of working from home policies.
All employees have an implied duty not to disclose confidential information or use this information for any purpose other than the employer’s business. The is usually data protection commitments under the UK GDPR. The Information Commissioner’s Office (‘ICO’) has underlined the importance for employers to ensure that their employees are trained in differentiating what is and is not an authorised use of data. ICO has explained that employees should only use technology approved by their employer when handling personal data and that they should be aware of confidentiality when holding conversations or using their screen whilst other individuals are at home. A working home policy must explain what happens when an employee is on holiday and the level of security at the employee’s house. The ICO has provided guidance that employers can refer to when explaining to employees how to handle their data.
In conclusion, employee contracts must include a right at reasonable times and notice to enter workers’ homes in order to conduct risk assessments, install IT equipment and remove this equipment if the employment contract is terminated. Finally, agreements of ad hoc working environments or home working must highlight and ensure privacy provisions to protect employees and company information.
Credits: Andrew Allen QC - Outer Temple Chambers
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