Working from home: an overview for employers and employees

Answer

Employer considerations – legal and practical

In 2019 just over 5% of the total workforce in the UK said they worked “mainly from home”. While the Office for National Statistics says this represents a general increase in the number and proportion of people working mainly from home, this is still a small percentage of the population. The number of people currently working mainly from home of course has increased in light of the covid-19 pandemic.

In his announcement on 23 March 2020, Prime Minister Boris Johnson suggested that, under the implemented restrictions, people should only travel to work if “absolutely necessary”. The regulations subsequently enacted required individuals to have a reasonable excuse for leaving their homes. Work could amount to a reasonable excuse, but only if it is “not reasonably possible” to work remotely. While this is a lower threshold than the prime minister’s suggestion of absolute necessity, it may remain unclear to some employers and employees what this means in practice.

For example, there may be employees who can theoretically work from home if provided with IT equipment, but their employer cannot provide that equipment. For businesses not already set up for home working, this may involve not only the provision of a laptop, but more complex IT infrastructure, such as a virtual private network and specific system access.  

Home working equipment and infrastructure may be a significant expense for an employer, coming at a time when many businesses are suffering cash-flow issues and a downturn in revenue. Employers may question whether they are really required to incur these expenses or whether they could instead require employees to continue to attend their normal workplace. While there appears to be no specific legal requirement on employers to provide such equipment, government guidance indicates that enabling working from home should be a priority and “employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working”. The social pressure on employers to enable home working has been significant. 

In addition, all employers have a duty to ensure the “health, safety and welfare” of employees at work. Enabling home working is one way to protect employee health during the pandemic. Protecting employees’ health will also minimise the need for employees to take time off due to illness or self-isolation, thereby improving business continuity. 

The employer’s health and safety duty extends to employees working from home, so employers should still consider how to assess risks in the home environment. Health and Safety Executive guidance notes that the risk of using display screen equipment during temporary home working does not increase, so a home workstation assessment is not required. However, employers should try to meet special requirements and may want to communicate advice to employees on how they can assess their own workstations.

Employers’ duties also encompass the mental health of their employees. Employees may be feeling stressed, anxious and isolated. The rise in home working can make this more difficult for bosses and colleagues to identify. Remotely checking in with employees is crucial to ensure they are coping with this change in circumstance. Employee concerns will likely differ, making it even more important to make contact with individuals to address any possible concerns.  

Working from home after covid-19

Home working is not a means for employers to reduce their level of responsibility for employees. Obligations do not disappear when an employee works from home, so it is unlikely that employers would drive a move towards continued home working in order to reduce responsibilities. For example, if an employee is working from home on a long-term basis, home workstation assessments are necessary, which may require more effort from employers to ensure compliance.

However, the temporary change in the nation’s ‘workplace’ may see a cultural shift in attitude towards home working. Businesses that have previously appeared unable to facilitate working from home have had to consider ways they can, and will want to think about how it can be part of securing business continuity in future.

Some sectors had already begun to introduce a remote element prior to covid-19, introducing fitness classes, healthcare GP apps and remote tutoring as examples. While demand post-pandemic will depend partly on the value consumers place on ‘virtual’ services, some businesses may work on ways to facilitate and improve remote working if they have seen their employees benefitting.

With employees not commuting to work, they may have more time for hobbies and exercise, improving work-life balance and mental wellbeing. Some employees may enjoy working in the quiet of their own home as opposed to an open plan office. Any future move towards home working depends partly on the employer-employee relationship, as some employers still see ‘face time’ as a means of measuring productivity. Some employees may also dislike home working if they have distractions at home, struggle to manage their own time away from the office or rely on face-to-face discussions to work productively. 

The 2019 statistics showed that, of the 32.6 million people in employment, 8.7 million had worked from home. While this is still a minority, and gives no indication of how often, it shows there were already a significant number of people set up for home working. As more people are set up for home working in response to covid-19, it will be up to employers to decide whether this becomes the ‘norm’.

There are large sectors of the economy where home working may not be feasible, such as hospitality, retail, manufacturing, transport and healthcare. For those businesses who have had to close, a return to face-to-face working is likely as soon as the government restrictions allow. It is likely that in some of the most prominent industries in the UK, such as accommodation and food services, there will be little change due to the nature of the services themselves.

Overall, it is unlikely that employers will suddenly move straight to a model of their workforce all working from home full time, but we could see many adopt a flexible approach by allowing employees to work from home on a more regular basis. Not only might this lead to a happier and healthier workforce, but some employers may also see other unexpected benefits, such as decreased rent obligations if their need for desk space reduces.

Kirsty Poots is a second-year trainee solicitor at DWF. She is based at the firm’s London office.