Tabytha Cunningham | 29th March 2021

Flexible work arrangements | COVID and changes to how we work


Tabytha Cunningham | 29th March 2021

Flexible work arrangements | COVID and changes to how we work

Flexible work arrangements – are you embracing the change?

In our white paper, we consider the law as it stands and how it needs to be updated to reflect the change in how we work. Aspects such as employment contracts, terms and conditions of employment and health and safety must all be re-considered in light of the change in working practices. One obvious issue that will surface is whether employees have the right equipment to work from home – and who is obligated to ensure they do? Employers also need to ensure that they conduct health and safety checks for their employees’ home environment.

Flexible work arrangements and changing ways of working – what do companies need to change with regards to their employment contracts?

To date most employees have moved to home working without permanently changing their contracts. The instruction to work from home has come from the Government guidance, not the employer. As we move out of the pandemic, employers will need to revisit their employment contracts.

If employers wish to make permanent changes to employees’ contracts to move to remote working, this will be a contractual change which requires the employees’ consent or an appropriate consultation process. If employees wish to formally change their working arrangements they will need to submit a flexible working request setting out the changes they need.

Again, now is the time for employers to plan how to manage this issue. Employers need to think about what they can accommodate based on their needs, for example if they need a certain level of in office cover or a certain proportion of a team working during core hours. Employers should also consider informally canvassing opinions from employees, with managers testing the water as to whether they are looking to change their working arrangements more permanently so employers can understand what level of requests they may be facing.

  • Where permanent changes are agreed, these need to be formalised in employee’s contracts of employment. Where remote working is agreed, new clauses in employment contracts should particularly cover:
  • When the employee may still be required to attend the office
  • The equipment that will be provided and how this will be inspected and maintained
  • Data protection requirements to ensure the confidentiality of data kept in the employee’s home
  • When the arrangements may be revisited (for example in the case of poor performance)
  • Health and safety arrangements

There is currently no specific protection or guidance for homeworkers, other than limited obligations in relation to health and safety assessments. However, it is common for these matters to be set out contractually so that both parties are aware where they stand.

What do employers need to do regarding health and safety for employees working from home?

Employers will need to make sure they are carrying out appropriate health and safety checks for their employees’ home environment. While March’s instant lockdown made it impossible to put all the necessary measures in place, this situation cannot continue to be left indefinitely.An employer is reasonable for an employee’s welfare, health and safety “so far as is reasonably practicable”.

This includes where an employee is working at home. Employers should conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees to identify any hazards and assess risks.

Whilst COVID-19 restrictions remain in place it is reasonable for this process to be conducted remotely rather than in person. As a minimum, however, employers should:

  • Provide their employees with information on working safely at home
  • Ask employees to carry out a self-assessment of their workspace and equipment and report the outcome to the employer
  • Meet with the employee remotely to discuss the outcome of this assessment and agree measures to reduce any risks identified
  • Ensure the employee is provided with appropriate equipment to conduct their work safely.

If homeworking arrangements are made permanent for employees, employer should consider any additional equipment they may require to reflect this and should regularly review their risk assessments.

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