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Question of the month: What does an employer need to bear in mind when considering homeworking?

30 January 2020

Homeworking is becoming increasingly popular but employers should consider a number of important issues before agreeing to it.

Flexible working is now a well established practice, with more employees regularly either working from home for part or all of the week. Whilst there is no legal entitlement for an employee to work from home there is at least an obligation on an employer to consider how it may work, for example as part of a flexible working request, reasonable adjustments or assisting with a phased return to work following sickness absence.  Homeworking can provide mutual benefits. Aside from reducing overheads for employers, it can also help to recruit and retain staff, create an engaged workforce and improve motivation and work-life balance and help employees save costs and time on commuting.

In practice, homeworking can be dealt with very differently from one employer to the next. This in part will depend on the nature of the job or the employer's approach to what equipment they are willing to provide. However, as well as ensuring that the employee can do the job from home, employers need to bear in mind some tricky issues and be mindful of certain obligations.   

Is an employer obliged to pay for equipment?

Outside of health and safety (see below) there is no obligation on an employer to provide any equipment, but at the very least an employer should consider providing, or contributing to the cost of, communications equipment such as laptops and phones. Employers may consider this the best way to ensure the homeworker can be effective away from the office and that the devices used comply with the employer's data security standards.

There may also be a need to consider the more subtle costs of working at home, such as heating, telephone and internet connections. The degree to which this is provided will really depend on negotiation. Often, what is felt 'fair' in terms of covering costs will depend on how much time is spent working at home and the degree to which homeworking is something the employee wanted or that the employer required. If an employee works the majority of their time at home at the employer's request, it might be more appropriate for the employer to contribute to the running of the home during working hours.

Health and safety considerations

Employers have a general obligation to provide a safe working environment.  This will extend to making health and safety assessments for homeworking employees (i.e. not workers or independent contractors) in respect of their 'work activities' and take measures to reduce any risks. In practice, this means considering the type of work being undertaken, the associated tools and equipment, and what risks are posed by the homeworking environment.

Where the employee is an office worker the risks are likely to be minimal. But an employer should not assume that the homeworking environment is safe. For instance, what if the employee's home office is in the attic accessed via a ladder or has no emergency exit? Or what if the employee's home has damp issues? What if the employee doesn't have a desk and chair set up at home and they plan to work from the sofa, what might the long-term effects of that be?

Employers have a degree of scope in how they carry out the assessment. Some employers will ask the employee to carry out their own, perhaps annually, but this relies on the employee to accurately identify any risks. For this reason, some employers will send someone independent to make these assessments.

Other forms of homeworking, such as activities involving machinery or chemicals, will naturally present a more obvious risk that the employer will need to mitigate carefully, including via issuing personal protective equipment (PPE) and ensuring that tools and materials are handled in accordance with health and safety rules and any relevant legislation.

Employers also need to consider their specific duties to new and expectant mothers in a home environment and should review the potential mental health implications that homeworking will, or may, result from the employee feeling isolated from the employer and their colleagues. As concerns evolve around employee mental health and wellbeing employers may need to take account of the suitability of home working more generally.

Useful information about homeworking is available from the Health and Safety Executive's website.

Data protection and confidential information

It is vital that employers consider how they meet their obligations under the data protection regime and how they secure sensitive information when considering homeworkers.

One way of doing this is by providing devices to the employee on the understanding that the property and information stored on those devices is and remains the property of the employer. Employers should ensure that it is a term of the employment contract that the employer can demand the return of the equipment at any time and that the employee is specifically obligated to return it at the end of their employment.

Employers also need to think about the practical implications of homeworking on data protection and commercial sensitivity. For instance, what risk to security is there if an employee is using home or public wifi and how is hard copy information kept at home? For these reasons an employer might want to put in place rules and protocols on password protection, locking computers when not using them and the provision or use of a locked office or filing cabinets.

Again, for an employer's protection it is best to set out clearly the employer's rights of access to devices, electronic and hard copy files and to intellectual property rights during employment and on its termination.

Best practice

Homeworking can be a useful tool for both employers and employees. Both need to think carefully about what homeworking conditions entail on a case-by-case basis. An employer in particular needs to take account of their contractual and statutory obligations.

Employers can help navigate the issues identified above by having a clear homeworking policy in place, which should ideally be tailored to think about the specific issues an employee working from home will create for their employer.

Employers should also put in place a homeworking agreement. Ideally, this agreement would cover each party's rights and obligations in respect of equipment, health and safety, data protection and confidentiality to ensure the employee clearly understands what is expected of them.

If you would like to discuss any aspect of this article further, please contact Michael Crowther or any other member of the employment team on 0113 244 6100.

You can also keep up to date by following Wrigleys employment team on Twitter

The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.

Michael Crowther View Biography

Michael Crowther

Solicitor
Leeds

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