With more people becoming accustomed to working from home will updating Contracts of Employment for Homeworking necessary?
Hopefully by the end of June 2021 we will have moved closer towards a full re-opening of the economy and a lifting of the various restrictions that have applied, in varying degrees, since March 2020.
At the peak of each lockdown, the UK government made it mandatory for employees to work from home, unless you were a key worker or were unable to do your job from home. This left a large proportion of the population having to adapt to working from home.
Although in some cases this may not have been a positive or successful change, for many employees it gave an opportunity to experience working from home for the first time with the prospect of achieving a better work life balance, whilst at the same time spending less time travelling and reducing travel costs.
However, it is true to say that for many employees the reality of homeworking hasn’t quite lived up to the initial positive expectations, with many employees feeling that they are missing out on some of the benefits of working in an office environment such as having face to face contact with colleagues and being able to separate their work life from their home life.
Likewise, many employers have also seen benefits in their teams working from home, not only for their employees and their wellbeing, but also the benefits for the business itself. Some employers enjoyed seeing their overheads dropping considerably during this period whilst many others went one step further and took this as an opportunity to re-evaluate the need to have premises either at all/ or in same format as before.
This has now led to a position where many employers and employees can see the benefits of working under a new ‘hybrid’ model that involves part of the week worked in the office with the other part worked at home. On the face of it, this appears to offer the ability to reduce the size of an employer’s outgoings yet still maintain that work/life balance for the employees.
With many employers now considering either full time homeworking or a hybrid model, it is important for businesses to make sure that their contracts of employment/handbooks are sufficiently flexible to permit any required changes that may be needed either now or in the future.
Below we explore the key issues and potential changes for employers to consider when determining whether their existing documentation is able to cater for these different ways of working.
The most obvious change to consider from a contractual perspective is the ‘place of work’ details currently listed in the contract. This raises a number of questions such as:
Whilst this may be a familiar concept in a contract of employment, employers should also consider applying this specifically to new homeworking arrangements. If the business needs to change the way it works in the future, or the new arrangements are simply not working out, the employer will want to ensure their contracts have the required flexibility for them to change matters without exposing themselves to potential claims from their employees.
The existing contract may have set hours of work, whereas a new homeworking/hybrid contract may offer the employee additional flexibility, perhaps by offering some core hours where they will be expected to be contactable, but otherwise allowing the employee to dictate their own hours.
The employer will need to consider how they will monitor the work the employee is doing and once again, see how they can build in flexibility to change the situation if it is not working out as expected.
It is important for employees to be reminded in their contract that they should be taking appropriate breaks which may be less easy to demonstrate with employees who are working away from the office.
With an office-based role there may be limited provision in the contract of employment dealing with:
Although there is no legal obligation for employers to provide the equipment necessary for homeworking, the employer will usually wish to do this and therefore adequate provision should be made for how this equipment is dealt with at home.
Working from home arrangements are unlikely to be covered in enough detail in a traditional office-based contract of employment. Working from home, even for only part of the week, brings with it challenges in terms of keeping the employers’ data confidential and secure. With family members often sharing spaces, it is important that the employee is obliged to keep strict controls over access to the employer’s data. This could even extend as far as ensuring that listening devices such as Amazon’s Alexa are kept out of the vicinity confidential matters are being discussed.
Employers will still have responsibilities and a duty of care to ensure the health and safety of employees who are working from home, carrying out a risk assessment as appropriate (depending on the nature of the work being carried out). As well as physical wellbeing, this also includes ensuring an employee’s mental health is catered for such as providing adequate supervision and ensuring regular contact is provided, especially for those living on their own and/or those with existing mental health conditions.
In addition to the changes to the contract of employment, it is also prudent to put in place (or review existing) policies that deal with these new arrangements.
Whilst an employer will wish some of the requirements set out above to be contractual in nature, and therefore be included in the contract, there will also be some elements that are more suited to inclusion in a separate policy that will set out clearly the correct way of working for the employee but leave the employer free to amend later if required.
Generally, employers need to tread carefully if seeking to make changes to an employee’s contractual terms and consider the implications and options open to them if the employee does not agree. Whilst employers would hope that moving to a flexible hybrid/homeworking model would be welcome news and agreed by their employees as a variation of their contract, it would also be sensible for employers to think of alternative options should this change not be accepted.
During the pandemic both employers and employees have largely set aside their formal processes, such as making a formal flexible working requests or formally amending contracts of employment. However, there is a risk that continuing to work on this basis after the restrictions have eased will lead to arguments from employees that homeworking terms should be implied into the contract of employment, as this better reflects how the parties are working in practice. It would therefore be prudent for employers to seek to formalise these arrangements, helping them to maintain control over the relationship and avoid potential litigation, by ensuring their contracts and policies reflect the true working position.
Should you require any assistance in making amendments to your employment contracts or if you wish to discuss the implications of homeworking/hybrid working arrangements, please get in touch to find out how we can help.
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Employment Law expert Steve Cook recently contributed an article to The Connectionsb2b Magazine in which he explored why businesses still need office space even in a world where homeworking is becoming the norm. You can read the article here