For many, the workplace is changing in a way that could not have been imagined before the pandemic. Although the measures taken to enable those who could continue working remotely during successive lockdowns were initially seen as temporary, many have now been working that way for more than 18 months, and even employers who would never have previously considered it a viable option, have been consulting with staff about home or hybrid (part home, part workplace) ways of working on a permanent basis.
Here, we take a look at the employment documentation employers will need to have in place to support this.
When it comes to what should be included in the contract of employment, consideration should be given to the following:
Employers are legally required to provide details of an employee’s normal place of work. This will be either the employee’s home address in the case of home working, or both their home and the employer’s premises in a hybrid arrangement.
If the normal place of work is the employee’s home address, employers should also include a contractual obligation requiring employees to attend the workplace for certain purposes, such as client meetings, training, team meetings, appraisals and investigations.
It is also a good idea to require employees to inform the employer of any change of address in order that it can consider any steps it needs to take to reassess the safety or appropriateness of the employee working from a new location (see health and safety below).
Employers are also legally required to provide details of an employee’s normal hours of work. Options include fixed hours; core hours when employees must be available but flexibility as to when the remaining hours are worked; or whether they are free to determine when they work provided they complete a weekly number of hours.
The contract should also make it clear that when employees are working at home it is their responsibility to ensure that they are taking the rest breaks required by the Working Time Regulations.
It is important to consider how home-based workers will be managed and appraised and to agree this at the outset of the arrangement. Depending upon what is agreed, employers should consider setting out any formal obligations in the contract to ensure there is no dispute at a later date.
While there is no obligation to do so, the employer will need to consider whether it is going to provide the employee with the equipment necessary to perform their role, particularly IT equipment, and what rules will apply to the use of that equipment. For example, employers will usually require employees to ensure that no-one else in their household has access to or uses the employer’s equipment.
Any rules should be set out or at least cross referred to in the contract along with a right to enter the employee’s address to maintain and retrieve the equipment. The contract should also make it clear what expenses (if any) the employer will cover, for example broadband, phone etc.
Given that outside of the employer’s workplace it is harder for employers to take measures to ensure the confidentiality of its information and compliance with its data protection obligations, the contract should set out what steps employees must undertake to ensure the security of confidential information and personal data. This might include placing documents in lockable storage that only the employee has access to and requirements as to how these should be securely destroyed when no longer needed.
The contract should also make it clear that a failure to comply with the obligations may constitute gross misconduct.
Although a blanket consent to the employer monitoring its employees in a contract of employment is no longer appropriate, it is advisable to include a provision to ensure your employees are made aware of any remote monitoring and to signpost the employee to the privacy notice or policy that sets out the details and justification for doing this. Find out more about the rules on monitoring remote staff >
Business and personal circumstances change over time, and it is therefore important for the contract to contain a right for the employer (and potentially employee) to terminate the arrangements in certain circumstances if home or hybrid working becomes difficult or inappropriate. It is however important to note that any such right would need to be exercised reasonably by the employer and usually only after consultation with the employee.
In terms of non-contractual employment documentation, it would be worth having a homeworking (or hybrid) working policy to expand upon the relevant points in the contract of employment.
In addition, it will be important to review all other policies to see if any amendments will need to be made to take account of home or hybrid workers – in particular, policies relating to use of IT systems and the handling of personal data are likely to require review.
Employers remain responsible for the health and safety of their employees ‘so far as is reasonably practicable’ even when working from home. Health and safety policies and procedures will therefore need to be reviewed accordingly.
Employers are also obliged to carry out appropriate risk assessments of the work environment, which will need to be adapted for those working from home. This may in part be able to be done by asking the employee to complete and return an appropriate questionnaire about their home workspace.
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