This month on 19 May it is “National work from home day”. So what should employers be aware of if they want to facilitate homeworking? Akshay Choudhry of Burges Salmon LLP examines the legal and practical considerations.
National work from home day is organised by Work Wise UK, a not-for-profit organisation aimed at making the UK a more progressive economy by encouraging smarter working practices. Cutting out the commute by allowing people to work from home can be a win-win; offering opportunities for the employer to reduce/reallocate office space and, for the worker, the benefit of valuable time-savings.
According to the Office for National Statistics, 13.9% of the UK’s workforce were homeworkers in January to March 2014, up from 11.1% in 1998, and the proportion of the UK workforce working from home is likely to rise as employers increasingly recognise that flexible working, including homeworking, can bring benefits to their organisation.
More on homeworking
Homeworking may mean working exclusively from home, but the term “homeworker” can also be used to describe those who divide their working time between home and their employers’ premises, work at home on an occasional basis, or are mobile workers who use their home as an administrative base. Whatever the precise arrangement, there are a number of issues for an employer to consider.
Changes to employment contracts
It will normally be appropriate to tailor a standard employment contract in order to reflect any homeworking arrangements. In some instances, it may also be sensible to put in place specific policies to cover off some of the more practical arrangements.
Particular changes to the contract to consider include the following:
Place of work – if the employee will be predominantly working from home, the normal place of work will be the employee’s home, although the contract should also include a provision that the employee can be required to attend the office as necessary. There should also be a provision for what happens if the employee moves house – particularly if the move is further away from the office which may have financial implications for the employer (see “expenses” below).
Hours of work – specify when the employee will need to be available for work. For example, will the employee be required to observe strict office hours, have complete flexibility over when they work, or have certain “core hours” when they must be available. Will they be required to account for their time and if so, how?
Salary and benefits – you should take care that homeworkers are not treated less favourably on grounds of any protected characteristic. For example, if an individual is working from home because of ill-health and receives less favourable benefits than a comparable office-based employee, they may claim disability discrimination. Ensure, for example, that they have access to work related benefits (such as the staff canteen or workplace gym) even though they may not use them regularly.
Expenses – consider whether or not employees will be entitled to expenses for travel to the office or a contribution towards telephone, broadband, heating and lighting costs. Other expenses to consider include postal/courier costs, stationery costs and photocopying/printing costs. If certain conditions are met, payments by employers to reimburse employees for reasonable additional costs incurred as a result of homeworking can be tax exempt.
Confidentiality and data protection – this can be difficult to supervise remotely so include an express term to address what is considered confidential information and the necessary protections required (such as passwords, encryption, a secure filing cabinet, a shredder etc) and make sure data protection obligations are maintained. If the employee is using their own computer/phone ensure you have a right to monitor work communications on those devices.
Equipment – will the employee require specific equipment to perform their work? If so, who will provide and pay for this equipment and who is permitted to access it? Will the equipment need to be insured and, if so, whose responsibility will it be to arrange and pay for this?
Right to enter – do you want include a licence to enter the employee’s home (on reasonable notice) in order to install, maintain or service any company equipment, or retrieve it on termination? A right to enter may also help enable you to carry out risk assessments for health and safety purposes, although legal advice in terms of enforcing this right would be needed if the employee (or another person) was refusing entry.
Trial period – consider allowing the homeworking for a trial period, and include this in the contract, so you can assess whether or not the arrangement will work in the longer term. It is also worth including the right to require the employee to revert to office-based working.
There are also practical considerations to consider when agreeing to a homeworking arrangement.
Health and Safety
An employer is responsible for an employee’s health, safety and welfare so far as is reasonably practicable. This means that employers must conduct risk assessments of all the work activities carried out by employees, including those working from home.
Whilst most homeworkers will be doing low risk, desk-based jobs, you should ensure appropriate risk assessments are conducted both at the start of the homeworking arrangement and periodically thereafter. Consider how you might regulate stress levels, how to ensure rest breaks and other working time obligations will be met, whether specialist equipment is required or needs to be safety tested, first aid arrangements, and reporting work-related accidents. The Health and Safety Executive provides useful guidance regarding homeworking.
Generally speaking, there is no legal obligation on an employer to provide the equipment necessary for homeworking. However, it is advisable to consider this on a case-by-case basis – particularly where the employee may suffer from a disability and the provision of such equipment could be considered a reasonable adjustment.
Most employers will provide basic equipment at least. For example, most will want homeworkers to use only company computer equipment to ensure compatibility as well as maintenance of virus protection and other security measures. It may also be sensible to provide the homeworker with a dedicated telephone line.
If the employee will be using their own computer equipment, agree whether or not the employer should pay for its maintenance, repair and fair wear and tear.
Data protection and security
Carry out a risk assessment of the data protection implications of homeworking. This would include consideration of the following:
- Who might have access to the employee’s computer?
- Is the employee’s home adequately secure?
- What rules do you have regarding encryption, use of passwords, and the transfer of data between home and office?
- What rules do you have in place regarding the retention of data?
- What measures should be taken against accidental loss, destruction or damage?
Reporting and performance reviews
Out of sight should not mean out of mind. Adapting your reporting and review procedures, as well as individual management styles, will be important both for the homeworker – who may otherwise feel isolated and without support – and the employer – as you will need to monitor the quality and/or quantity of the homeworker’s output and retain the relevant level of control over the relationship.
Consider formalising the contact that homeworkers should have with their manager (for example being required to report in at least once per day/week). You could also require homeworkers to attend the office for regular meetings.
Public liability insurance
Check your employer’s liability insurance covers employees working from home. Make sure your actions (or any lack of action) don’t invalidate the insurance.
Mortgage provider consent
Remind the homeworker that they must have consent from their mortgage provider to work from home.
The mere fact that an employee is working from home should not change their tax status – you should still deduct income tax and national insurance contributions as normal.
However, you may advise the employee:
- to check any potential council tax liability as a result of homeworking;
- that some of their homeworking expenses may be tax deductible;
- that, in limited circumstances, they may be entitled to a tax deduction in respect of the expenses of travelling from home to the office; and
- if computer equipment provided by the employer is used for anything more than “insignificant” private use, a tax charge may arise.
Normally, time spent by an employee travelling to their place of work would not count as “working time” under the Working Time Regulations 1998. However, where the employee’s normal place of work is their home and they travel to their employer’s premises or to see clients/customers, this could count as “working time”. You will need to ensure that homeworkers do not exceed the 48-hour limit on their working week when travel is taken into account (or that they have opted out of the maximum hours’ cap).
The war for talent is alive and well and people are demanding to work differently. With employees increasingly welcoming the opportunity to work from home, employers that are able to offer this should reap the rewards from this competitive advantage.