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30th March 2020

COVID-19 : The legal issues of working from home

30th March 2020

COVID-19 : The legal issues of working from home

Charlotte Farrell

Posted: 30th March 2020

T: 023 8048 2134

E: Email Me

In this blog, we look at the legal issues of working from home for staff and how employers can facilitate this change to ensure their business runs as smoothly as possible during the Coronavirus pandemic. Our blog “COVID-19 : Practical issues of working from home” covers the practical side.

Legal issues an employer needs to consider when staff are working from home

Below are questions regarding legal issues that employers need to think about regarding their employees working from home to make sure their business runs as well as it can during COVID-19. We also below provide the answers to those questions.

Can an employer require their employees to work from home?

If a contract of employment contains a mobility clause entitling the employer to require staff to work within a “reasonable distance” of the business, this arguably creates a contractual right for the employee to work from home. Subject to the specific wording of the clause, an employer could therefore require an employee to work from home without breaching their contract of employment.

In normal circumstances, the absence of a mobility clause would not entitle the employer to require employees to work from home. Forcing such a change on an employee could amount to a breach of the mutual trust and confidence inherent in the employment relationship giving the employee the right to resign and claim constructive dismissal. However, these are exceptional circumstances. The current guidance from Public Health England to employers and businesses on Coronavirus (COVID-19) states that employees should be encouraged to work from home wherever possible. Therefore if the employer asks employees to work from home due to legitimate concerns for public health and safety, it is likely this would be seen as a reasonable and lawful order. Depending on their personal circumstances, an employee who refuses to do so could find themselves subject to disciplinary action.

Can an employee demand to work from home?

An employee does not have a general right to work from home. However, all employers are under obligations to take reasonable care of their employees’ safety and provide a safe system of work.

For businesses that are still operating as normal, employees may refuse to attend work due to their fears around contracting coronavirus. In these circumstances, the employer should meet with the employees to discuss their concerns and consider each situation on a case by case basis.

The Government has said that for the moment jobs that can be done from home should be done from home to help stop the spread of the Coronavirus. Therefore if the nature of the job allows home working and social distancing measures are difficult to put in place in the workplace, an outright refusal on employees working from home may breach an employer’s duty to take reasonable care of their employees’ health and safety.

Additionally, some employees may fall within the category of those who are at an increased risk of severe illness from coronavirus. The Government has defined two separate groups; those who should be “shielded” due to a list of the most serious medical conditions and suppressed immune systems and those who are “strongly advised to follow the social distancing measures stringently” which includes those aged 70 or above, those who are pregnant or those with other underlying health conditions. Not only would refusing a reasonable request to work from home from a person in these categories breach their health and safety obligations, it could also give the affected employee a claim under the Equality Act 2020 for discrimination. We strongly recommend taking specific advice on any employees in these situations to ensure any steps taken are fair and legal.

Is an employer required to provide an employee with equipment to enable them to work from home?

An employer will want to ensure their employees have the equipment they need to work from home effectively. An employer should discuss individually with employees what equipment they need to work from home and wherever possible they should provide that equipment or contribute financially towards the employee finding it. This could include providing laptops and printers, purchasing extra licences for computer programmes or reimbursing the cost of printer paper and ink.

Depending on the length of time the home working arrangements last for and the type of equipment an employee is using, employers may also need to consider making a contribution towards the increased gas and electricity costs the employee will have.

However, this is a business decision for employers to make. A business may be unable to finance these additional costs for all employees as well as paying their salary. Employers may wish to consider whether business premises should remain open for accessing certain specialised equipment when absolutely necessary and put in place social distancing measures to ensure it is safe for employees to do this.

What if an employee needs to care for children during their normal working hours?

Given the recent closure of schools, many employees will be having to care for their children at home on very short notice. Some employees with younger children may be unable to work at all while looking after them, or they may be able to split childcare with another parent and work part-time or different hours.

Employers should attempt to be as flexible as possible in allowing staff to work from home so the employees can provide care and continue to carry out their role. Employers should initiate these discussions as soon as possible to avoid uncertainty and manage expectations.

Whilst the legal right to request flexible working only allows one request per employee in a 12 month period (subject to having been employed for 26 weeks) an employer can choose to agree a flexible working arrangement with an employee at any stage. Given the potential benefits to an employer of having such discussions, we strongly recommend employers consider taking this approach while dealing with the Coronavirus epidemic.

What are the options for a business if an employee cannot work from home and cannot attend their work premises in person?

Despite the best efforts of both an employer and employee, sometimes it may not be possible for some employees to work from home. If it is not possible for an employee to go to work as normal or to work from home in any way, there are several other options an employer can explore with them. These include using untaken annual leave, other paid leave offered by the company, unpaid time off for dependants, unpaid parental leave or agreeing general unpaid leave.

Alternatively, the new Coronavirus Job Retention Scheme announced by the Government on 20 March 2020 may provide an answer for employers and employees in this situation. The employee could agree to be “furloughed” and the company could recover 80% of their wage costs for the period they are classed as a furloughed worker, subject to a cap of £2,500 and the rules of the scheme. Read our “Coronavirus Job Retention Scheme – frequently asked questions” to find out more. 

What should employers do next?

Employers should act carefully and consistently and meet with employees individually to discuss the options available to them.

We would advise all employers and employees to ensure they stay up to date with guidance from Public Health England and be prepared to adapt their advice to employees if the guidance changes.

All employers should consider putting in place a Homeworking Policy. Depending on the nature of the business and how long these arrangements may be in place, it may also be advisable to send employees working from home a temporary amendment to their terms and conditions of employment dealing with issues such as insurance, health and safety, data protection and the right to access the property to recover equipment.

This blog was co-written by Adam Wheal, trainee solicitor and Charlotte Farrell, Solicitor.

If you would like further guidance on staff working from home or wish to discuss the possibility of redundancies and lay-offs and the Coronavirus Job Retention Scheme, please do contact one of the employment team.

Our dedicated “Coronavirus – Legal advice and guidance” page contains advice and guidance on matters affecting, businesses, employers, self-employed, employees, planning legislation etc. and is regularly updated as and when new guidance comes in from the government or other regulated bodies.

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Charlotte Farrell

Posted: 30th March 2020

T: 023 8048 2134

E: Email Me