Homeworking: The legalities and the practicalities

Chris Dobbs, specialist employment & HR solicitor at Frettens, has written several recent articles on home-working and the use of employee monitoring techniques. Here, he consolidates these articles and explores this evolving issue as a recent case addresses just how far employers may be able to go without breaking the law.

Will working from home continue after lockdown?

Homeworking, in some capacity, is likely to become the norm for an increasing number of workers in the coming months and years.

There has been a slight historical trend in this direction for certain sectors and the advancements in technology have allowed office-based businesses and those who engage consultants an ideal opportunity to reduce business overheads by having staff work from home.

Is a home worker different to an office worker?

Homeworking is not a recognised concept in UK employment law; all that really matters is employment status. This means that regulation of homeworking comes from taking existing law and applying it to homeworkers.

A worker working from home is still a worker. They are still subject to the terms of their contract of employment (unless this is varied correctly) and they still have all the same rights granted to them under existing legislation. This means that working time, pay, holiday entitlement, data protection, health and safety, and Equality Act rights all continue to apply to home workers.

Should every business have a working from home policy?

We strongly recommend that businesses introduce homeworking policies if they have any intention of keeping staff working from home in the long-term.

Temporary measures to tackle government advice in the current climate might be handled informally but beyond that, you will almost certainly want to govern how requests are made and the basis on which homeworking operates in your business.

Writing a working from home policy

There are a range of considerations to be taken into account when preparing an effective homeworking policy. I set out a few of these and also introduce our own homeworking policy in this article.

It is also important to remember that an employee requesting homeworking may more appropriately be making a statutory request for flexible working arrangements. Whoever is dealing with the request should be able to identify where it might be flexible working as it may also trigger considerations under discrimination law.

How to handle data protection and WFH

In posting one of my recent articles on social media, we accidentally triggered a discussion about how the wider public perceive homeworking. One of the issues which came up was a concern about the sharing of personal information outside of workplaces.

It is true that under data protection law, careful consideration must be given to the security of customer, client and employee information where someone is working from home. This is not as simple as requiring homeworkers to comply with existing data protection policies: the business needs to plan, manage and risk assess for potential data breaches.

Remember that a data protection breach can be a criminal offence with individual liability and that breaches of GDPR can result in fines of up to 4% of annual global turnover or some £18 million; whichever is higher.

Working from home and remote monitoring

One of the more interesting questions arising from homeworking also concerns data protection in relation to monitoring employees. We looked at the legalities of this in our recent article that you can read here.

Shibu Philips, founder of London-based beauty business Transcend, recently told the BBC he has been using Hubstaff software in order to monitor what his employees are doing. The software allows him to track his workers’ hours, keystrokes, mouse movements and websites. He can look at screenshots and see how much time workers are taking on tasks.

Employees are fully aware of the software and can delete websites visited during breaks.

The pandemic has created a big demand for this and other kinds of surveillance software. Employers worry that a lack of visibility will impact on employee productivity.

Employee wellbeing and working from home

Understandably, they want to protect their businesses at what is a crunch time for many.

But is software the way forward? Employees have also struggled during the pandemic, worried about their health and families as well as their jobs and prospects.

Should employers use remote monitoring software?

Introducing monitoring software during a crisis could damage employee trust and confidence at a time when you want to retain your very best people to see you through the crisis. Surveillance software isn’t fool proof – it can’t record thinking time or the creative process in any meaningful way.

Employers need to be mindful of employee rights in these situations. Many employees object to being so closely monitored in this way and capturing screenshots carries the real risk of the employer ending up as a data processor for what could be highly confidential information.

Employees might not be allowed to be using business IT equipment to access their private email or medical records, but that is unlikely to protect the business if that data is accidentally disseminated.

Alternatives to remote monitoring of employees

Instead of software, consider whether the softer approach might be a better way to go.

Managers should be checking in with staff regularly, especially those who are working remotely and may live alone, to address welfare matters as well as simply productivity. Genuine shirkers should not be difficult to spot, and all staff remain bound by your policies and procedures, so use them.

The human touch can be more sensitive than software, and carrots invariably work better than sticks with the employees you want to keep.

Is remote monitoring of employees legal?

And remember, if you do use surveillance software to monitor staff, have a clear policy, get employees to explicitly agree to its terms and make sure it is used proportionately. Covert monitoring is only ever going to be justified only in the most extreme cases.

Monitoring employees’ private communications

One recent case (BC V Chief Constable of the Police Service of Scotland) demonstrates situations where the demands of an employer could be sufficient to supersede the privacy rights of an employee.

Working from home and Right to Privacy

An individual’s right to privacy stems from Article 8 of European Convention on Human Rights. This is not a piece of EU legislation but is instead an international treaty of which there are 47 signatories. Incorporated into UK law by the Human Rights Act, this says that everyone has the right to respect for private and family life, their home and correspondence.

However, it is what is known as a qualified right: there are situations where the law may allow interference with this right. One such example came up in the BC case.

You can read the details of this case in Chris’ summary here.

A specialist employment solicitor’s view on working from home

Homeworking, as it becomes more common, will inevitably bring with new legal issues and new takes on old issues.

In due course, there may be some further regulation to try and govern the working style but that seems a long way off and for now we are left with existing law and hammering it into shape for homeworking.

There are areas where employers need to be especially careful (health and safety, data protection and employee privacy rights) when implementing homeworking. Ensuring that all policies and procedures are in place and that staff and managers are adequately trained ahead of long-term homeworking will be invaluable in making the transition as smooth as possible.

Author: Chris Dobbs | Employment Solicitor | Frettens Solicitors

www.frettens.co.uk | cdobbs@frettens.co.uk

Chris is a member of the Employment Lawyers Association and qualified in 2017 having spent two years training at a high street practice in Surrey dealing with a broad workload in a variety of practice areas. Chris chose to specialise in employment practice where he gained experience acting for employees and employers in both contentious and non-contentious matters including employment contracts, unfair dismissal, discrimination claims and settlement agreements.