Employer update | Homeworking & COVID-19 (Coronavirus)

Employer update | Homeworking & COVID-19 (Coronavirus)

We’re all currently living in uncertain and unprecedented times. In light of the government’s present focus on social distancing as a means of slowing down the spread of COVID-19 (Coronavirus) and protecting vulnerable groups, it’s likely that employers will increasingly need to utilise home working, wherever possible, in order to mitigate  the impact that these strategies will have upon their businesses and operations. Our latest blog examines some of the key homeworking related questions and issues.

Can we insist that one or more of our employees works from home?
 
In the absence of an established right to compel individuals to work from home, it’s likely that an employer’s decision to insist on a period of home working would amount to a variation of the employee’s contract of employment and that the relevant employee or employees would need to consent to this change.
 
For some employers, this may be the first time that homeworking has been introduced. Bear in mind that the health and safety implications of individuals working from home will need to be considered. The HSE has published some useful guidance on this issue which can be accessed here.

Are there any particular types of employees that we should allow to work from home?
 
Yes, the government’s latest advice (published on 16 March 2020) states that individuals falling into certain categories are "strongly advised" to work from home wherever possible. The relevant guidance can be accessed here.
 
Note that the governments guidance also states that all other workers are "advised" to work from home or vary their daily commute and use less public transport, whenever and wherever this is possible.

Can employers refuse to allow an employee to work from home if that individual will also be looking after children during working hours?

Ordinarily it would not be appropriate for an employee to care for others whilst working from home. However, as we all know these are far from ordinary times and as the COVID-19 outbreak gathers pace and the impact upon society as a whole increases, it’s likely that employers are going to need to relax and temporarily disapply the standard rules and expectations insofar as they relate to individuals needing to work from home.

If (as is increasingly being speculated) schools and nurseries are shortly ordered to close, then an outright ban or prohibition on employees looking after children whilst working from home will simply not be workable.

It may however be the case that certain employees with younger children or children with additional needs (requiring a greater degree of attention and care) may not be able to work whilst providing that care. Employers should be alert however to the possibility that employees in these circumstances may be able to share the burden of childcare with another parent or adult in order to work flexibly or on a part-time basis.
 
Be alert to the fact that employees who suddenly find themselves unable to work because of school and/or nursery closures may choose to assert their right to time off to care for a dependant Time off in these circumstances is usually unpaid (unless their contract of employment says otherwise).
 
Are there any particular concerns involving data protection and home working?
 
It would be sensible for employers to consider whether large scale working from home means that updated training and/or information should be given to employees regarding data protection and confidentiality. Employees need to know what is, and is not, in terms of the use of data.
 
Employers should also consider whether a data privacy impact assessment examining the data protection implications of working from home should be carried out.
 
Issues that might be considered as part of the employer’s assessment could include:

• Who will have access to the employee's computer and personal data stored on it?
• Whether any specific security measures or rules should be in place to ensure that members of the household do not have access to personal data held on the computer.
• If personal data is being created and/or stored at home is it properly secured?
• Is encryption and password protection in place?
• How will information be moved between the employee’s home and the office?
• Is the employee’s home internet connection password protected and secure?
• Do new rules concerning the retention of documents, proper disposal (e.g. shredding) need to be created and observed?
• Will regular reminders be sent to employee’s reminding them about their obligations to safeguard personal data?