2020-09-23
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"Work from home if you can", what does this mean for UK employment law?

Home / Knowledge base / "Work from home if you can", what does this mean for UK employment law?

Posted by Tina Chander on 23 September 2020

Tina Chander - Head of Employment Law
Tina Chander Partner - Head of Employment Law

Following the UK’s COVID-19 alert level moving to 4, meaning that transmission is “high, or rising exponentially”, a return to stricter COVID-19 restrictions across the UK has now been announced.

In an apparent U-turn from the UK Government, one of the fundamental changes will be a direct contrast to the 'back to work' message rolled out in August as Michael Gove stated: "there will be a 'shift in emphasis' in the government's working from home advice." 

It was reported early on Tuesday by the Metro that Boris Johnson was set to scrap his 'back to work' drive when he unveiled his plan to bring down soaring rates of the virus which will come into force from Thursday.

This was proven to be the case, as among the restrictions which were announced by Boris Johnson on Tuesday evening, it was stated that Office Workers should return to working from home where it is possible to do so, however those in “key public service and in all professions” where it is not possible to do so should continue to attend the workplace. It was also stated that employees should continue to attend work if it is important to their job, mental health or wellbeing.

In addition, Michael Gove told BBC Radio 4’s Today programme “we are stressing that if it is safe to work in your workplace, if you are in a COVID-secure workplace then you should be there is your job require it. But if you can work from home you should”.

Whilst the change back towards homeworking may come as a surprise for employees and employers across the country, for many employers the 48 hour notice given by the UK Government may not be long enough to put in place a new policy or provide guidance to their employees on working from home or whether they should continue to work from their COVID secure business premises. 

If employers are forced to send their employees back to a homeworking environment, there are some key things they need to ensure are in place, so that they remain compliant with UK employment laws. Many of these will already be in place from the previous full lockdown, but it is worth recapping what is expected of employers during this time, and the potential difficulties that they may face as the UK heads back towards a, mostly, homeworking workforce. 

Duty of care

Firstly, it is important to note that regardless of the working location, employers have a duty of care to each of their employees. This means that employers have an obligation to ensure that their employees are not at risk whilst at work and must take reasonable steps to ensure an employees’ health, safety and wellbeing.

Employers should therefore ensure that they have taken all reasonable steps to either enable the employee to continue working safely in the office (i.e. ensuring that they have complied with regulations and guidance so that their workplace is COVID secure), or given the fact that homeworking is likely to be on the rise once more, ensure that it is safe for the employee to complete their role from home and they have the necessary skills and equipment to enable them to complete their role safely.

If employees are unable to work from home due to the nature of their role or their profession, then it is essential that employers ensure the workplace is COVID secure and Government guidance is being adhered to. If the workplace is not COVID secure, then this could result in employers being the subject of complaints and potential whistleblowing disclosures to governing bodies.

Contracted hours

Unless otherwise agreed, employees have a contractual obligation to undertake their contracted hours. If they don't, they would be in breach of their Contract of Employment. However, given the unique set of circumstances, we would advise some flexibility at least in the short-term. So far, yesterday’s announcement sees no change to schools, which in theory should make it easier for employees to work their regular hours.

However, employers should remain conscious that schools are operating with more flexible hours, and some schools are not operating full days, or students are not in attendance all week. In addition, in some circumstance’s schools are closing to specific year groups where a student has tested positive for COVID-19.

It is, therefore, a balancing act between ensuring productivity levels are not affected, against the day to day challenges faced by homeworking and employers should remain conscious of the additional difficulties which may be faced by their workforce whilst working from home. 

That's not to say key performance indicators cannot be put in place to ensure employees still achieve their objectives, but perhaps at times of day to suit the other elements of their life they are attempting to juggle. And of course, UK employment law still apply, so, if you feel an employee is exploiting the home working situation which has arisen as a result of COVID-19, or any other regulations which impact upon their working life, you still have the option for disciplinary action, but use this with caution, and seek legal advice, so you do not find yourself on the wrong side of a discrimination claim. 

Mental health

As a general rule, people don't adapt well to forced change. The fact that we feel we're heading backwards in terms of the lockdown restrictions may affect some more than others. Mental health issues can be difficult for the most astute of employers to identify and address; this can be even more challenging when the only form of communication is a video chat and email. 

Employers still must regard all employees’ mental health during this time and should consider what steps or practices they can put in place to identify and help employees who are struggling. Its vital employers look to safeguard their employees through individual chats with their line managers, team calls, and support mechanisms like peer to peer support or dedicated mental health first aiders, wherever possible.

It is also essential employers continue to ensure their employees can separate their work and home life. The approach to work-life balance shouldn't shift. Therefore, employees should be encouraged to take regular breaks, get exercise and fresh air and not work excessive hours.  

Reasonable adjustments

It is likely that all reasonable adjustments are already in place from the full lockdown from earlier in the year. However, to recap, employers are obliged to make any reasonable adjustments to ensure that employees have the right equipment in place to allow them to carry out their job safely. This could include providing them with ergonomic equipment to assist them in working from home, for example.  

This is particularly important for those employees who have had reasonable adjustments made in the work environment, especially if those adjustments have been made as a result of the employee disclosing a disability to their employer; it is therefore important an assessment is undertaken to see if those adjustments are needed at home and how they can be facilitated. 

You're on mute!

It is also advisable to think about how you can facilitate everyone working from home. It's not just about the equipment, do your employees have the skills and knowledge necessary to use the technology for home working?

Employers should ensure that employees are able to complete their role effectively and communicate with their colleagues from home to keep the business operating as normal, wherever possible. This may include providing employees with training on using specific programmes or conducting and scheduling video conferences, for example.

"You're on mute" will no doubt be the most used phrase of 2020 because of this issue! 

Other issues

Employer’s should also remain aware of other issues which may arise when it comes to allowing or preventing employee’s from working from home.

For example, if an employee expresses that they feel anxious or unsafe in returning to the office and their employer refuses to allow them to work from home then employees may raise grievances or submit claims to the employment tribunal alleging that the company has breached their duty of care or the implied terms of trust and confidence.

Employers should tread carefully and take legal advice to ensure that they are not subject to any unwanted employment tribunal claims arising out of the COVID-19 pandemic.

Flexibility

The takeaway message is to be flexible and sensible. These have been challenging times for us all, and as we can see, it is far from over. One thing we have all learnt is how this adversity has, on the whole, brought out the very best in employers and employees. Be sensible and protect yourself by ensuring your home working policy is up to date and clearly accessible to all employees.  If you are unsure about how to proceed then you should seek legal advice in the first instance.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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