Before COVID-19 hit the world in 2019, the idea of employees working from home was a relatively unusual concept for the UK’s workforce. However, one positive aspect of the pandemic was that it opened the eyes of employers and employees alike to the benefits of home and/or hybrid working.
In a 2020 study conducted by the Wales Institute of Social and Economic Research and Data, just 4.7% of UK employees worked from home prior to the COVID-19 pandemic. However, in an Office for National Statistics study during the period between 5-30 June 2024, 28% of the UK working adults had worked from home and travelled to a place of work within the last seven days, with 11% of the UK workforce now exclusively working from their home.
Accordingly, employers are increasingly being required to consider hybrid working as an everyday request and expectation by their employees. Whilst many employers will have adapted their business and working practices to accommodate hybrid working, some employers are not fully up to speed with the legal considerations and implications needed to protect their business when it comes to working from home.
An employer’s duty of care
Employers have common law and statutory duties relating to the health and safety of their workers. This includes both mental and physical health. An employer's duty extends to taking reasonable care to provide its workers with a safe working environment and to taking reasonable steps to prevent them from risks which are foreseeable during their working time.
If employers are allowing hybrid working arrangements, then they should consider if health and safety risk assessments are required, depending on the work being conducted at home, to ensure that an employee’s remote working environment is safe and suitable for that employee to complete their contractual duties. The Health and Safety Executive recommends that employers should consider things such as whether the employee has adequate lighting to avoid eye strain as well as whether their working area is tidy and free from obstructions which might cause slips and trips.
Despite an employee not being in the office, employers also need to consider an employee’s mental health and wellbeing whilst they are working at home. Line managers should therefore be, inter alia:
- Keeping in regular contact with their teams;
- Having open conversations about workloads; and
- Ensuring that employees are not working habitually working over their contractual hours simply because they have remote access to work systems.
The contract of employment and a hybrid working policy
Employers also need to think about whether their template contract of employment adequately deals with relevant aspects of remote working. All employers are required to provide a “written statement of particulars of employment” which is usually referred to a “Section 1 statement” or “Section 1 terms” to employees and workers from day 1 of their employment.
Under this Section 1 statement, an employer must give details of an employee’s place of work. For entirely homeworking employees, this is usually relatively straightforward as their place of work would simply be their home address (if the employee is permitted to work in another remote location, this address should be confirmed). However, the position is far more nuanced where hybrid working is in place. If hybrid working is agreed on a permanent basis as a change to an employee’s terms of employment, then this should be reflected in the contract.
A key consideration for employers considering hybrid working is whether they wish to introduce a minimum expected attendance at the workplace. As a result of many businesses granting full homeworking during the COVID-19 pandemic, there has been coverage in the press that some businesses have faced resistance from their workforce when re-introducing compulsory days in the workplace. Employers therefore need to consider the balance that they require for compulsory days in the workplace and consider this against genuine business need. For new employees joining a business, it is therefore beneficial to be clear from the outset in the contract of employment about expectations around days in the workplace.
Where employers wish to give themselves maximum flexibility on their hybrid arrangements, they could consider not making hybrid working a permanent, contractual right but setting out more informal arrangements in a non-contractual policy. For employers who choose to do so, the policy would need to cover off many of the points which are dealt with in this article. For instance,
- what the entitlement is;
- conditions for being allowed to work from home;
- health and safety;
- confidentiality, data protection and data security; and
- termination of a hybrid working arrangement.
Employers should review their policy and any informal hybrid working patterns regularly to ensure that they still meet the needs of the business and reflect the actual working arrangements and practice undertaken by hybrid working employees.
Confidentiality and data protection
Confidentiality and data protection is another important area for employers to consider. Employees have an implied duty not to disclose confidential information or use it for any purpose other than the employer’s business.
Confidentiality is more difficult to protect when an employee is working from home. Most employers would therefore want to ensure that there is an express duty of confidentiality within the employee’s contract of employment with a clear and comprehensive definition as to what information will be considered confidential.
For industries where the protection of information is particularly sensitive, employers may wish to take extra precautions such as requiring additional information barriers and procedures for dealing with confidential waste disposal. This would most likely be set out in a policy, however, some employers may feel that such obligations should be contractual.
Equally, GDPR and data protection legislation applies to remote workers. Employers therefore need to consider what technical and organisational measures need to be put in place to deal with unlawful process of data that is identifiable to an individual. One way in which the impact can be assessed is via a data privacy impact assessment which might cover topics such as:
- Who will have access to the employee's computer and personal data stored on it?
- Does the employer control the software and security updates to worker's devices?
- How hard copy or digital information is moved between home and the workplace?
Employers should also be regularly reviewing their data protection policy and privacy notice to ensure that all necessary risks of home working are considered and mitigated wherever possible.
Our commercial team is often instructed to advise on data protection issues and policy. Please do get in touch with us should you want more information on how they can help.
Can I trust my employees to work from home effectively?
There is perhaps a legitimate concern among employers that it is easier to monitor employees and verify that they are carrying out their contractual duties/ working their contractual hours when they are working within a workplace environment.
Some employers have therefore adopted monitoring software to help check in more easily on the work undertaken by employees remotely, where this cannot be readily checked in person. Examples of this are software programmes which monitor mouse clicks, keystrokes, or even recording an employee’s screen. If such techniques are used, then employers must inform employees of what measures they are using. The consequences of not doing so are twofold: possible data protection breaches but also employment law consequences.
Employers, however, must be careful that such monitoring techniques do not have an adverse effect on productivity and damage the employment relationship. It is therefore recommended that employers think carefully about whether a monitoring process is an essential requirement and, if so, then consultation with employees who will be affected would be advisable to seek consent and agreement to any monitoring software and explain the rationale behind the business implementing this. Employees are likely to want to know why monitoring is needed, how the data will be used and how this might impact on their employment. Employers will also need to consider those with reasonable adjustments in place and how expected standards may need to be altered to accommodate disabilities. For instance, some employees may have an adjustment to allow them to take short regular breaks throughout the day and therefore they should not be penalised for having lower mouse clicks or keystrokes than those who do not have such adjustments.
The right to return
There will be circumstances where an employer reasonably changes their mind about the suitability of a hybrid working arrangement and wants the employee to revert back to the workplace only. Some reasons why hybrid working might not be working out could be:
- Where hybrid working has been a temporary solution to a problem (for instance, renovation works to an office space);
- A dip in the performance of an employee, where it is considered higher management levels are required; or
- Changes to the employer’s business or the employee’s roles and responsibilities which make working from home no longer suitable.
In practice, regardless of whether the employee’s contract gives them a contractual right to hybrid working or whether this is contained in a policy, to remove the right could be difficult. Where in the eyes of the employee a hybrid working arrangement has been working effectively, an employer who terminates an arrangement either by express term or by custom and practice, without a good reason might be faced with a claim based on a breach of the implied term of mutual trust and confidence. This would give rise to a risk of a claim for constructive unfair dismissal.
Therefore, if an employer does wish to remove the right to hybrid working then it would be advisable to do so in consultation and with the agreement of the affected employees. Any agreed changes to their working arrangements should always be set out in writing.
If you are looking for support with a hybrid working arrangement or need to implement or review your existing policies, then please do get in touch with the Employment Law Team who will be able to assist you.
Updated September 2024
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
