With many employees having worked from home for the past few months, employers are now reassessing the long-term feasibility of remote working. As homeworking was first adopted as an emergency measure out of necessity, not all of the implications were fully considered and we set out below a checklist of the issues to take into account.

Where employers encourage or permit homeworking, it is important to remember that their duties to provide a safe system of work and to safeguard third parties personal data and confidential information apply equally to employees who work remotely. The lack of uniformity in the facilities that employees have at home also presents practical difficulties.

Once employees no longer need to attend a place of work regularly it may be attractive for employees to relocate to or work from abroad or a significant distance from the office. However working overseas presents some unique challenges and risks to the employer.

As a firm, we have offered unlimited homeworking for a number of years as a part of the way that we have attracted and retained talented lawyers to our team. Based on that experience, we set out below some of the “soft” issues which are as important as, if not more important than, the legal issues.

Healthy and Safety

Do employees have adequate facilities to work safely including a suitable desk, chair, monitor, keyboard and mouse which are suitable for all-day long-term use?

Consider remote desk-based assessments and/or workstation training.

Consider heightened psychological risks arising from remote working including how to maintain regulator contact, monitor workload and how to deal with the challenges of recognising stress in remote workers (see the Health & Safety Executive guidance here).

Carry out risk assessments, update your health and safety policy statement and (if applicable) consult with health and safety representatives about homeworking arrangements.

Physical Security

Do employees have adequate facilities to work securely?

Do employees have a private workspace or is their workspace shared with housemates or family members? If so, how can the risks of inadvertent disclosure of confidential information be managed?

Technology and Information Security

Even where employees work using the employer’s devices which are fully encrypted and have appropriate security protocols, there are a number of issues to consider:

Expenses and Tax

What is the company’s policy on the provision of computer equipment and peripherals for home use?

Until the end of the 2020-21 tax year, there is a temporary exemption from income tax and NICs for expenses reimbursed by an employer to an employee where the expenses are incurred on the purchase of equipment obtained for the "sole purpose" of enabling the employee to work from home due to COVID-19. For the reimbursement to be exempt, it must be the case that the provision of the equipment directly by the employer would have been exempt from income tax under the usual homeworking tax provisions.

Housing Issues

Home insurance providers should be notified of business use (clerical only) and any changes to the pattern of occupancy.

Employees may wish to check the terms of their lease or mortgages to ensure that they are not in breach of their obligations (unlikely for clerical use).

Business Protection

Where an employee does not have exclusive use of a private office consider imposing a duty to disclose potential conflicts of interest with other members of the household which may arise from inadvertent sharing of confidential information.

Consider enhanced systems to detect and prevent misappropriation of confidential information. For example, disabling USB drives, data loss prevention tools, enabling audit logs (including for systems like Microsoft 365 where the audit log is not enabled by default) and reviewing audit logs to monitor access to commercially sensitive information. Where appropriate consider using advanced log management and analysis tools to centrally manage logs and automatically flag high risk activity. However increased monitoring should be balanced against the privacy issues discussed below.

Working Time

Consider whether you need to reassess normal working hours including whether measures are required to enforce “down time” and the policy on “errands” or childcare responsibilities during what would traditionally be seen as working time.

Consider, for example, if employees should be asked to complete timesheets or if other technical solutions can be adopted to monitor output (but see below regarding privacy).

Those with compulsory holiday policies may need to consider taking steps to enforce these policies for example with an IT lock out.

Super Remote Working

Consider whether there should be a maximum distance from the office at which employees may reside, so employees are able to attend the place of work at short or reasonable notice. A time and distance requirement may be appropriate.

Consider if there should be an express requirement to attend the office on request and any advance notice that may be required.

Employee Privacy

Ensure that the use of monitoring applications or features are appropriately disclosed to employees facing fair processing notices. This does not just apply to employers who install applications specifically designed to monitor workplace behaviours (such as keystroke loggers, web browser monitoring, screenshot monitoring and the like) but also to features within standard business applications. Examples include Team’s presence monitoring and Zoom’s (recently withdrawn) attention tracking.

Where employers do use online tools to monitor productivity their use in the home rather than the workplace is likely to be far more invasive. This will require greater scrutiny, consultation and care in deployment.

Overseas Working

Employees who base themselves overseas may expose their employers to local employment, immigration and health and safety laws. Employees are likely to be subject to local taxation and employers may also be subject to local tax withholding requirements. This means that local advice should always be sought. The cost of obtaining this advice and the additional administrative burden means that many employers choose to impose an outright ban on overseas working. Alternatively, employers may allow overseas working via professional employer organisations or may allow overseas working from designated countries.

Employees may even be at risk of creating a taxable presence for their employer overseas and exposing it to corporate taxes in the other jurisdiction. Homeworking policies should contain guidance on how this can be avoided.

Practicalities

Based on our experience the following principles emerged:

• Choice - Not all employees want to or are able to work from home. It is especially difficult for those who do not have a dedicated workspace.
• Equipment - Office quality IT is essential - that means dual monitors, office quality printers, full size keyboards, VOIP phones, fast broadband and the like.
• Exercise - Commuting to the office is often one of the main sources of daily exercise. If this is removed from the daily routine it is important to get out of the house on a daily basis and employers may wish to offer “healthy living” advice/sessions.
• Team - Some way of replicating watercooler moments, team dynamics and mentoring of work are vitally important.

The significant advantages of homeworking in terms of the reduction of real estate cost and commuting expenses also beg the question who should benefit from those savings? We have yet to see employers reduce salaries for those who do not face commuting costs or who are able to benefit from reduced living costs away from the main urban centres but we envisage that that these tensions will drive many of the disputes of tomorrow.

Homeworking may not be a long-term sustainable solution for some employers, teams and individuals. There is certainly some empirical evidence that early adopters of homeworking have rolled back on their approach. Employers should ideally adopt a formal homeworking policy to set out their approach to the issues set out above.