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Coronavirus - FAQs for employers on working from home

11 March 2022

These FAQs look at an employer’s obligations towards staff working from home.

In January, the government’s guidance to work from home ended. Government advice is now for employees to speak to their employers about arrangements for returning to the office. 

On 21 February, the government launched its “Living with Covid” strategy. As a result, many of the Covid measures in England have or will soon change significantly, prompting many employers to consider immediate return to work plans and their longer-term position on remote and hybrid working.  
These FAQs look at the various considerations that employers need to bear in mind in relation to employees working from home. Further detail on hybrid working considerations can be found here.
 

Should office-based employees in England work from home?

No, the guidance to work from home was removed when the Plan B restrictions were lifted in January. The Cabinet Office guidance now says that the government is no longer asking people to work from home, and people should talk to their employers to agree arrangements to return to the office.

However, Covid infection levels remain relatively high and infection in the workplace remains a risk. All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. We consider the steps employers must take to manage ongoing risks of Covid-19 in the workplace in our FAQs on workplace policies and decisions for “Living with Covid.

Health and safety

Do employers have health and safety duties to homeworkers?

Yes. Employers owe a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, and provide and maintain a safe system of work - including for employees working from home. This extends to safeguarding mental health and wellbeing.

The UK’s workplace health and safety regulator, the Health and Safety Executive (HSE), has updated its homeworking guidance which applies both to those working from home long term or as part of hybrid working arrangements.

Acas has also published guidance on working from home and hybrid working which can be accessed here.

Do employers need to carry out a risk assessment for those working from home? 

The short answer is yes.  However, the exact nature of the assessment will depend on the type of work which is being undertaken at home.

Under the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers have a general duty to conduct a risk assessment of all the work activities carried out by their employees. This involves identifying any hazards and assessing associated risks.  Employers must take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. There are also specific obligations in relation to the use of display screen equipment (see below).

The duty of care which employers owe to employees also apply to those working from home. While the HSE took a relatively relaxed approach during the pandemic, it is likely to expect stricter compliance as the Covid-19 pandemic is brought under control and longer-term arrangements are put in place. In line with current HSE guidance, employers should take a balanced and proportionate approach to assessing risk for homeworkers  

Employers should help employees assess and adapt their working environment by providing guidance and asking them to undertake a homeworking risk assessment. This would highlight whether there are any risks which arise from the type of work which is carried out from home, whether it can be done safely and whether any measures ought to be put in place to protect employees from any risks identified.  For employees whose work is largely on computers and the telephone those risks are likely to include feelings of isolation and disconnection which can result in pressure and stress, a lack of supervision, physical issues arising from prolonged use of display screen equipment and working long hours and/or inadequate breaks from work.  Measures to minimise the impact of these risks might include:

  • Checking that each employee feels the work they are being asked to do at home can be done safely.

     

  • Providing guidance and information to employees to help them review their working environment. Equipment supplied by employers must be suitable, in good working order and inspected regularly.

     

  • Putting in place mechanisms to enable employees to raise any specific health and safety concerns

     

  • Ensuring adequate supervision of junior or less experienced staff members, including new joiners.

     

  • Keeping in touch with lone workers, including those working from home, and ensuring regular contact to make sure they are healthy and safe. There will always be greater risks for lone workers with no direct supervision, or anyone to help them if things go wrong. This is especially important for new joiners who may struggle to feel integrated.

     

  • Establishing clear expectations on both sides in relation to communications, working hours, availability and so on.

     

  • Ensuring employees have avenues to report mental wellbeing issues and schedule regular check-ins with homeworkers. There are likely to be increased (or different) levels of stress caused by homeworking – relating to isolation, blurred boundaries between home and work life, increased exposure to family life (which will not always be happy). Employers need to consider how they work and stress levels are monitored. The HSE guidance on home working includes practical steps employers can take to help manage the risks of stress and mental health problems for home workers. The government has published guidance for employers on how to address loneliness and Acas has also produced guidance on spotting and handling mental health in the context of homeworking. 
Are there particular obligations where employees are using laptops and computers at home?

The Health and Safety (Display Screen Equipment) Regulations 1992 contain specific obligations in relation to display screen equipment (DSE). Employers must:

  • Identify risks for individuals who regularly use DSE, including laptops used for prolonged periods, as a significant part of their usual work. (HSE guidance suggests this means daily usage for continuous periods of an hour or more)

     

  • Reduce the risks identified to the lowest extent reasonably practicable.

     

  • Provide adequate training and information to employees.

HSE guidance on protecting homeworkers states that there is no increased risk from DSE for those working from home temporarily, so employers are not expected to undertake a full home workstation assessment. Nonetheless, employers should provide guidance and information on health and safety risks arising from homeworking and to ask employees to assess risk in general terms (including in relation to DSE related problems). The HSE provides a useful checklist which can be given to the employee. Employers should keep the situation under review and have regular discussions with workers to assess whether any additional steps are needed, since the adverse effects of homeworking with a sub-optimal set up will increase the longer the period of homeworking continues.

For employees working from home on a long-term basis, the risks of using DSE must be controlled by them doing a workplace assessment at home. Guidance should be given to support employees so that they can undertake a suitable workstation assessment. 

What health and safety duties do companies (or “end-users”) have towards temporary or agency workers carrying out work for them at home?

Agency workers who are working under the control of the end-user but not at the end-user’s premises should be provided with the same level of health and safety protection as employees.

Broadly speaking, the end-user has responsibility for ensuring the health and safety of the agency worker while the individual is working under their control, while the intermediary (e.g. the agency) has the duty to ensure that the end-user has taken steps to ensure the health and safety of the workers. 

Where there are multiple intermediaries (e.g. agencies or umbrella companies) involved in an engagement, or the possibility of multiple workplaces, the parties should agree who will take responsibility for which actions. End-users are encouraged to engage in active communication with all parties to ensure no-one’s health and safety is compromised. 

Provision of equipment and expenses

Do employers need to provide homeworkers with equipment to use at home?

There is no general legal obligation on employers to provide the equipment necessary for homeworking. However, if homeworking is to be a success, it is important for employees to have the equipment they need to perform their role.  Health and safety legislation requires that employers pay for certain equipment required by regulations, such as display screens and chairs.

In guidance issued during the first lockdown, the government encouraged employers to take every step possible to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. Some employers developed systems to allow employees to take equipment from the office to satisfy this shorter-term need. As the pandemic progressed, some employers provided a (generally fixed sum) budget to employees to buy necessary work equipment for working at home, so long as receipts are provided.

Employers should provide equipment or flexibility for employees who are identified as being at risk. In circumstances where equipment is specifically needed to address health and safety concerns, employers are liable to fund the cost of that equipment (and possibly have a role in selecting it).

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2020. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

Employers and employees should review their respective insurance policies to ensure work equipment used at home is covered.

There is no income tax or NICs charge where an employer provides office equipment for employees working from home under a formal homeworking arrangement if certain conditions are satisfied[HC1] , including that the property remains the employer’s and that there is no significant private use of the equipment.  

HMRC updated its tax rules for employers who cover the expense of providing or reimbursing the cost of homeworking equipment for employees working at home due to coronavirus, in particular a temporary exemption has been introduced to allow employers to reimburse home office equipment free of income tax and NICs until 5 April 2022. Detailed guidance can be found here and here.

Who is responsible for paying any additional homeworking expenses?

Employees will be using their own heating, lighting, broadband and sometime phone lines while working from home but it will be challenging to quantify the amount used for work purposes. Employers are not legally required to reimburse employees for such costs, but they may find themselves under pressure to allow for employees to reclaim some of these expenses. It is not uncommon for employers to meet the actual expenses or contribute a specific sum on account of expenses. Employers that decide to meet (a proportion of) these costs should review expenses policies to cover this.

If an employer decides to reimburse employees for the additional costs which the employee incurs while working at home under a formal working arrangement, the employer may pay up to £6 per week free of income tax and NICs without the need to see receipts or records of expenditure.  If the employer decides to pay more than the £6 per week it will need to either: (i) show that it is reimbursing the actual costs incurred by the employee; or (ii) ensure that the excess above £6 per week is subject to income tax and NICs. The exemption is only available for additional costs and, for example, would not include internet/broadband charges which the employee was paying for prior to working from home under a formal arrangement.

Is there any tax relief available to employees in relation to office equipment and additional expenses?

In so far as an employee’s employer does not reimburse the additional expenses incurred by the employee as a result of working from home, the employee may be able to claim tax relief from HMRC  - see here. Up to £6 per week can be claimed without evidence of the expenditure.  

To claim tax relief, the employee must show that the additional expenses were incurred wholly, exclusively and necessarily in the performance of the employment - this includes showing that the employee did not have a choice between working at home or at the employer’s premises. HMRC confirmed that employees who were working at home on a regular basis for all or part of their time as a result of Covid-19 will satisfy this test for tax years 2020-21 and 2021-22 provided that the employer has decided that the employee should work from home. 

If the employee incurs costs on office equipment which are not reimbursed by the employer, the  employee is unlikely to be able to obtain tax relief for those expenses unless they can show that they had to buy the equipment in order to do their job see here. A laptop or printer may fall within this category, but office furniture is unlikely to do so.

Employment documentation

Should we amend existing employee’s contracts to reflect homeworking?

Until the pandemic, homeworking was generally considered to be a non-standard, flexible working arrangement, where the “default” work location was the employer’s premises. Of course, employees worked from home during the pandemic out of necessity rather than by choice, and the formalised flexible working request regime fell by the wayside to some extent.

Employers may now wish to think about whether homeworking (or other flexible) arrangements need to be formalised in certain cases. Full or partial homeworking may have become a preference for some employees and employers are increasingly likely to be managing requests for permanent change. 

Many employers are also considering reducing the office footprint in the longer-term and moving towards hybrid working, enabling employees to split their time between working from home and working in the office.

For employers who decide to keep homeworking under review until a decision is made for a more comprehensive return to the office and/or hybrid models of working are implemented should continue to make clear that homeworking is, for the moment, still a response to an exceptional situation, and that once a more comprehensive return to the office is anticipated or hybrid models of working are implemented, employees may make flexible working requests if they wish to work from home on a more permanent basis. These should be considered on a case-by case-basis but how successfully the employee has conducted their role from home over the past two years will be a relevant consideration. For more on this topic, please see our article.

Some employers continue to receive requests from employees asking if they can work from “home” for an extended period overseas. Employers need to consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request where “home” is not the UK. You can find out more on these issues in our Inbrief here.

Should we introduce a homeworking policy?

Outside of the exemptions made to cover the period up to 5 April 2022, for the employer to claim the tax and NICs exemptions and reliefs relating to office equipment (see above) there needs to be a formal home working arrangement in place between the employer and employee under which the employee must work at home regularly. It’s therefore good to record this in writing. Many employers are either updating or implementing (non-contractual) homeworking policies.

Where contracts are amended to reflect the employee’s home as the place of work, employers will need to retain some flexibility to deal with some of the practicalities which can be set out it a homeworking policy. For example, requiring employees to attend the office (for training, appraisals or disciplinary issues) and dealing with how expenses for travel to and from the office should be met. If an employee moves house, this may mean higher travel expense claims or a practical barrier to attending work at the office so employers could consider placing limits on how far an employee can move from a particular location. Employers may also want to retain the flexibility to alter the arrangement temporarily and consider making agreement to homeworking conditional on certain conditions being met, such as satisfactory performance being maintained. 

Should we amend existing policies or handbooks? 

Many employers reviewed how existing sickness, data and IT, disciplinary and grievance and benefits policies were impacted by a shift to homeworking. These should be reviewed in the context of a longer term move to home working or hybrid working.

Regarding data and IT, policies should address data and information security issues related to working remotely, together with any need to address monitoring or other new ways in which personal data is being processed due to use of remote-working software. Disciplinary and grievance policies should ensure a fair procedure for both office workers and homeworkers. 

From a tax perspective, it is generally important to show that the employee is not making significant private use of the office equipment.  Provisions regarding private use of office equipment should be included in policies setting out the circumstances in which private use is permitted and warning employees about potential disciplinary consequences if the policy is not followed.  Mobile phones are exempt from this rule – one mobile phone may be provided to an employee for private use by the employee (or a combination of business and private use) without any tax and NICs charge. 

As mentioned above, many employers are either updating or implementing (non-contractual) homeworking policies, which draw together many of the areas mentioned above into a single document. Employers should keep their homeworking policies under review and update them as the businesses experience of homeworking develops.

For organisations contemplating a shift to hybrid working, they will need to consider introducing a hybrid working policy. We have written about this here. ACAS has also published new advice on hybrid working.

Diversity and inclusion 

How do we ensure that homeworking doesn’t disadvantage certain groups?

Disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2010. If such an aid is reasonably needed, the employer needs to make sure it is provided – at its expense – to the individual when working from home.

It is also important to ensure that those who are working from home in the longer-term are not overlooked for support, opportunities, training and promotion in the workplace. This is often referred to as proximity bias. Long term home workers are in practice more likely to be women with caring responsibilities. If they are treated less favourably as a result of their working location, this could risk allegations of indirect sex discrimination. 

Data protection and confidentiality

How should we manage the increased risk to data protection and confidentiality created by homeworking? 

Information security and confidentiality are more difficult to manage where employees are hosting calls and meetings at home with others in earshot, or without the usual office systems in place for securing devices and documents. However, the normal duties to protect employer and client confidential information apply even when employees are working from home. 

Employers should set out employees’ responsibilities in their homeworking policy (see above) and ensure that employees have adequate means of protecting information. For example, employers should be satisfied of the security of devices and software employees are using (e.g. the security levels of video-calling software and services). Care should be taken in choosing a secure platform that complies with your security requirements. 

The Information Commissioner’s Office has produced guidance on the data protection aspects of working from home.

It’s hard to know what employees are doing when they work from home – can we monitor them?

One of the issues which was traditionally raised by employers about homeworking was how best to monitor productivity or quality of output and enable effective supervision. Some employers, out of concern that employees are not managing to “switch off”, might also wish to know what hours employees are working.

Even when employees are working from home, employers still need to comply with duties to ensure rest breaks and other working time obligations. Some employers have adopted technology such as “lone worker apps” through which employees check-in on the app at the beginning of the day and check out at the end of each day.

Employers can monitor employees’ work activities, but the level of monitoring needs to be proportionate and reasonable – discussed further below.

What does an employer need to take into account when considering monitoring?

There is no statutory right to privacy in the UK, but this does not mean that an employer has unrestricted monitoring rights. Inappropriate and disproportionate monitoring could lead to claims involving the employees’ right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Employees also have data protection rights and can potentially claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal.

In relation to data protection, the Information Commissioner’s Office’s employment practices code contains good practice guidance for employers in this area. In summary, employers should:

  • Complete a privacy impact assessment setting out the purposes of the monitoring, the adverse impact on data subjects, the mitigation and its justification.
  • Inform employees of the monitoring that is being undertaken, and the reasons why it has been adopted.
  • If sensitive data is being processed, ensure that a legal basis for such processing is being met.
  • Limit the number of people who have access to the software and ensure that they are properly trained in confidentiality and data security.
  • Not use covert monitoring except in the most extreme circumstances (e.g. where criminal activity or similar is suspected).

Employers will need to weigh the perceived benefits to the business of monitoring, with the potential impact on morale, employee relations and mental health, which may ultimately lead to a deterioration in productivity. For a more in-depth discussion of these issues, please see our article.

 

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