The UK Government has stopped short of reintroducing working from home (WFH) guidance in England (for the time being), but close contacts of people who test positive for the suspected Omicron variant of Covid-19 will now have to self-isolate for 10 days. The knock-on effect for employers may be an increase in the number of employees WFH for an extended period if new variant infection rates rise quickly.
Many employers may think “been there, done that, no problem” when it comes to WFH. However, others may dread the prospect of further disruption to working patterns, having overseen a widespread flexible return to the office over the last few months. Equally, employees are likely to have only just acclimatised themselves back into working from the office, benefitting from in-person collaboration and supervision, team socials and better work/home separation.
What are the key WFH action points for HR? This edition sets out a five-point checklist to assist with managing any temporary return to WFH.
1. Health & safety
Employers have the same health and safety responsibilities for employees who work from home as they do for employees working in the office. It is important that employers try to observe these responsibilities to the same standard in both cases. As before, practical support will be required, including equipment for employees to carry out their jobs in a safe manner. Homeworking risk assessments should also be carried out (or updated where already in place) and any identified risks should be addressed at the earliest opportunity.
Employers should also seek to mitigate their health and safety risks by following the current guidance available from the Health and Safety Executive.
Regular check-ins with employees to support them in the face of any homeworking difficulties will be essential. One trend that we saw over the last 18 months was the difficulty employees encountered in separating home and working lives when their laptops are always within reach. In some cases, this led to continuous work pressure and an unspoken expectation of 24/7 availability. To counter this, employers should encourage regular breaks and exercise for those WFH for long periods and maintain reasonable expectations for working hours and availability.
Despite not having the office commute, many employees may still struggle to WFH during their normal contractual hours, for example if they are also looking after sick children or have caring responsibilities for other family members. Strictly speaking, an employee who decides to work flexible hours and take periods of absence from the working day without their employer’s consent may be in breach of the employment contract.
However, given the exceptional circumstances, we recommend that employers continue to recognise the need for flexibility and provision of support during this time. One option is to have a frank conversation about the need for any temporary change to working hours, which is likely to be better received if it’s accompanied with reassurance that the employee will continue to properly perform their duties.
However, any formal flexible working requests should still be dealt with by means of the statutory flexible working procedure and any internal policy. Adjustments for temporary WFH do not override the need to deal with individual long-term flexible working requests in a prompt, reasonable and consistent manner.
3. Monitoring employees
One ongoing challenge for employers is how best to manage risk and monitor employees’ output and productivity whilst they are away from the office. It can also be more difficult to allocate and supervise work tasks among a dispersed workforce. By now, hybrid supervision of junior employees is likely to be common practice for many employers. However, checks and balances which are currently in place should be regularly reviewed, to ensure they remain fit for purpose. That is particularly the case where regulators, such as the FCA, have voiced their high expectations of employers when it comes to supervision and risk monitoring.
Internal WFH policies should be brought to employees’ attention, and employers should make efforts to ensure employees who are at home for extended periods operate within normal systems and controls. One step might be to remind employees not to use personal mobile phones or laptops for conducting work duties. In financial services, for example, it will be important that employers can trace and record any decisions for compliance purposes. It is also important to ensure that the data protection implications of monitoring employees’ working activity are addressed through adequate policies and data privacy notices.
Businesses should also remember that any disciplinary action for what is perceived to be abuse of WFH concessions, such as taking unauthorised absence during the working day or exceeding any weekly limit on WFH days, still needs to be handled with care. The surrounding circumstances are highly relevant. For example, a female employee self-isolating at home with a child who has tested positive for Omicron may well be balancing childcare, home life and work responsibilities and her employer will need to tread carefully in relation to potential gender discrimination.
As we know from previous lockdowns, flatshares and family households may contain employees of one or more organisations all working in the same shared space, listening in to a variety of highly confidential calls or glancing at confidential documents on screens or desks. This can seriously impede an employee’s ability to adhere to their normal duties of confidentiality under their employment contract.
That said, there is little that can be done by employers on a practical level, other than to remind employees of their obligations to take all reasonably practicable steps to maintain confidentiality. If particularly confidential or sensitive material is involved, employers should check whether employees feel able to maintain the necessary level of confidentiality and, if not, establish how the risk of any breach can be reduced. That might include encouraging employees to work in separate rooms if possible and ensuring IT equipment is properly secured at the end of each working day.
5. Plan early
We have been recommending that clients do not update their employment contracts to reflect new hybrid working policies, so that the normal place of work in the contract remains the office. As we have seen, government pandemic policy can change quickly and it is easier for employers to implement and communicate an internal policy change, than to repeatedly amend the terms of employment contracts.
It remains to be seen whether formal WFH guidance will be reissued by the government. However, if so, it will most likely be a temporary response to address immediate risk and employers should therefore continue to develop working policies for the future that reflect their business needs. An action plan for 2022 could be put in place, reflecting a medium to long term return to the office. Issues to address would include any proposed upgrade of office space and facilities, reassuring employees about Covid safety, and communicating the employer’s expectations in relation to future working patterns.
Need more information about the above people and legal expertise? Talk to one of our lawyers: +44 (0)20 7628 2000
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