What steps can employers take to monitor the output of employees who work from home? Simon Kent investigates
Economic, cultural and political forces are encouraging the uptake of flexible work across the UK’s workforce. Parents with children under the age of six now have the legal right to ask their employer to seriously consider requests to work flexibly. Research from Microsoft and networking company AT&T suggests technology-supported teleworking has the potential to increase productivity, cut office management costs and convert commuting time into work time.
However, the bottom line for successful flexible working is that employees do actually carry out the work required of them when they are at home. And making sure that happens isn’t always straightforward.
“The issue of employees actually ‘working’ when at home does give rise to some tricky practical issues,” says Rustom Tata, head of the employment law team at DMH. “In my experience – which may not be representative – some employees believe this arrangement is in place to make it easier for them to carry out other domestic tasks. I have had cases where this means that a new mother does not arrange childcare for a young baby, or does laundry or shopping on these days at home.”
So what are the pitfalls connected with making this shift in working life, and how can an employer successfully monitor their home-based employees?
“Under the Employment Rights Act 1996 employers have to provide employees with terms of employment and one of those is their place of work,” says Ann Bevitt of Morrison & Foerster’s employment group. “If those conditions change, there must be a written statement detailing the particulars of that change.”
Bevitt notes this should be done no matter how insignificant the shift in working life – even a day spent working from home should be noted – and the contract must also include details of locations where work is to be carried out.
Mike Pryke-Smith, head of information worker strategy at Microsoft UK, has not been aware of alterations to his contract in 13 years of employment. “What we have are defined categories of flexi-workers,” he says. “You can work as a true flexi-worker and not even have a desk in head office – you mainly work from home and hot desk when you come into the office. Then there are workers who might work from home one or two days a week and have their own desk in the office, and so on.”
Microsoft has developed policies and financial support packages – including travel and home office expenses – to suit the working practices of each category of worker.
Alongside changes to the contract, employers should ensure other policies are changed to reflect working practices. Insurance policies may need to be changed and a proper risk assessment should always be carried out to ensure the home office conforms to Health and Safety guidelines (see Industry Focus feature on page 18.) This aspect is too often ignored by employers, but if someone develops repetitive strain injury working from a home office that has not been assessed, the employer could find itself responsible.
Output, not input
It is widely recognised that to successfully manage remote workers it is necessary to monitor the output of employees, rather than input factors. In other words, it doesn’t matter how many hours they work, as long as they successfully complete the work required of them. While this doesn’t remove the need for monitoring, it does alter the emphasis of that monitoring.
Measuring inputs – such as when exactly the employee is sat at their desk at home – could mean fixing some form of visual recording device. But, says Ann Bevitt: “It would be very difficult to justify a camera in a home office. Even if you did that kind of monitoring in head office and you had the relevant permissions, you would have to be very careful that you only recorded work activities. Data protection management of that material is also going to be difficult.”
Bevitt also notes that the information commissioner does not approve of constant monitoring, in the workplace or at home.
The assessment of work output could be undertaken by monitoring employee activity across the organisation’s network.
“Wherever the employee works, there is a clear benefit to them being attached to the organisation’s network,” notes Simon Kerr-Davis of Cripps Harries Hall. “You can use that connection to monitor e-mails, check online activity and so on.”
Kerr-Davis is swift to point out that this kind of monitoring can only take place with the employee’s prior knowledge.
“The Data Protection Act and related codes require you to explain what monitoring is taking place and why it is being undertaken,” he says. “This kind of monitoring is fairly standard in both the office and for remote working.
Indeed, the only headline case relating to monitoring practices has been that of Alison Halford, the former deputy chief constable of Merseyside Police, who won a claim under Article 8 of the European Convention on Human Rights, because her employer had not informed her of the possibility that her telephone calls might be intercepted.
Organisations also need to monitor employee activity to ensure their employees do not expose them to IT-related risks such as security breaches, loss or corruption of business critical data and misuse of company technology.
“People working from home often use their computers for non-business activities,” says Martino Corbelli, director of marketing at SurfControl. “Securing that technology is very important. It is easy to pick up malicious codes or spyware without realising and that puts your business information in jeopardy.”
SurfControl produces a web and e-mail filtering system which guards against such risks, but Corbelli stresses the importance of establishing an Acceptable Use Policy (AUP) to govern what employees can and cannot do with their computers. This should cover issues such as when and what employees can use their technology for, banned internet sites and information on e-mail management. “The law of common sense applies in these policies,” says Corbelli. “They should take into account existing working practices, the company culture and the industry in which the company operates.”
The policy should also factor in the performance of the technology itself – there’s no point granting free internet access to all employees if the organisation’s network isn’t up to the job.
Corbelli notes employers should take steps to ensure AUPs are read and understood by employees. This can be done by incorporating the policy into the employment contract, or by insisting employees click on an ‘I Agree’ button on their computer before being granted access to the internet or e-mails.
“You can’t write the policy once and throw it away,” adds Corbelli. “In six years time, laws will have changed, IT will have changed and your demands will have changed.”
Equally, employers must realise any policy will still be subject to UK employment law and, as the Halford case illustrates, human rights law. Creating a strict policy without reasonable grounds for doing so, or without communicating the need for that policy to employees could render it ineffective.
The challenge at the heart of creating home worker-friendly policies is to take an approach that provides the company with sufficient cover while avoiding the substitution of conventional management with a list of ‘dos and don’ts’. Giving a worker the freedom to work from home, and arrange their own working day seems to deliver most value when that employee feels trusted by their employer and therefore motivated to deliver on that trust. Such trust can be destroyed, or at the very least undermined, if the employee feels there are too many rules and regulations governing how they can work at home.
“You can’t micro-manage people who are working from home,” says Corbelli. “But then you wouldn’t put the kind of role where you need to do that into teleworking anyway. These are going to be high value individuals who are dedicated in their roles. You should be able to trust them to some degree.”