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20 January 2021
Should all office-based employees in England work from home?
Health and safety
Equipment provision and expenses
Data protection and confidentiality
Amending employment documentation
Diversity and inclusion
A new national lockdown has been introduced in England from 4 January 2021. This has been done by applying a strengthened version of Tier 4 across the whole country. Many businesses are required to close and workers must work from home unless this is not reasonably possible.
This largely mirrors the original country-wide lockdown in March 2020 and similarly includes the closure of schools and other educational institutions. Working from home will continue to be the new normal for most office-based staff.
Tier 2 and Tier 3, which had different rules on attending work depending on which tier employees lived and worked in, have been suspended. Some or all areas may be moved into lower tiers when the England-wide lockdown ends.
Employers must immediately review their homeworking practices in light of both the new national lockdown and continually changing government advice. In the longer term, this will also mean reviewing homeworking policies and arrangements on a more formal basis. These FAQs summarise the government guidance on work under the current lockdown and a range of other considerations that employers must take into account in relation to homeworking.
The new national lockdown measures are a strengthened version of the previous Tier 4 rules and the position on work has not changed. The rules require employees to stay at home except where they cannot work from home (ie, it is not reasonably possible for them to do so). If the exception applies, they can go to work.
For many, travelling to an office to carry out a screen-based role is unlikely to be justified, although there will be some office-based employees for whom it is not reasonably possible to work from home. Employers must make a careful assessment. The cautious approach – certainly for employers which closed their offices and other work premises completely between March 2020 and June 2020 and managed to carry on – is to lock the door on offices in England again. Employers and employees wishing to take the view that it is not reasonably possible for work to be done from home will need to give careful consideration as to why that is so and what justification they would advance if challenged.
Do employers owe health and safety duties to homeworkers?
Yes, employers have a duty to:
The United Kingdom's workplace health and safety regulator, the Health and Safety Executive (HSE), has updated its homeworking guidance to take account of working arrangements during the COVID-19 pandemic.
The Advisory, Conciliation and Arbitration Service (Acas) has also published guidance on working from home.
Must employers carry out risk assessments for those working from home?
The short answer is yes. However, the exact nature of the assessment will depend on the type of work which is being undertaken at home.
Under the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999, employers have a general duty to conduct risk assessments of all work activities carried out by their employees. This involves identifying any hazards and assessing associated risks. Employers must take measures to remove any hazards or, where this is not reasonably practicable, to minimise the associated risks. There are also specific obligations relating to the use of display screen equipment (DSE) (see below).
The duty of care which employers owe to employees also applies to those working from home. However, in these exceptionally challenging times, employers are unlikely to be required to approach things in the usual way – not least, because it is impossible for them to visit employees' homes at present. HSE guidance on regulating occupational health during the COVID-19 outbreak states that it will continue to take a flexible and proportionate account of the risks and challenges arising from the pandemic.
At the very least, employers should undertake a basic homeworking risk assessment and consider whether:
For employees whose work is largely on computers and the phone, the risks are likely to include:
Employers should consider whether they can implement any measures to minimise the impact of these risks, including by:
Are there particular obligations where employees are using laptops and computers at home?
The Health and Safety (Display Screen Equipment) Regulations 1992 contain specific obligations in relation to DSE – namely, employers must:
HSE guidance on protecting homeworkers states that there is no increased risk from DSE for those working from home temporarily, so employers are not expected to undertake a full home workstation assessment. Nonetheless, it would be advisable to provide guidance and information on health and safety risks arising from homeworking and to ask employees to assess risk in general terms (including in relation to DSE-related problems). The HSE provides a useful checklist which can be given to employees. Employers should keep the situation under review, since the adverse effects of homeworking with a suboptimal set up will increase the longer that homeworking continues.
For employees working from home on a long-term basis, the risks of using DSE must be controlled by them conducting a workplace assessment at home. As homeworking continues on a widespread basis, it remains to be seen whether the HSE's position will move towards requiring full workstation assessments for all employees working from home for COVID-19-related reasons. Given that many employees will have been working at home for more than six months, it is prudent to provide guidance and support to employees so that they can undertake workstation assessments. Employers moving to a model of permanent remote working for the long term, regardless of the pandemic, will need to carry out suitable risk assessments.
What health and safety duties do companies (or end users) have towards temporary or agency workers carrying out work for them at home?
The situation has become more complex in relation to temporary or agency workers during the pandemic, where they are working under the control of an end user but not at the end user's premises. In short, agency workers should be provided with the same level of health and safety protection as employees.
Broadly speaking, end users are responsible for ensuring the health and safety of agency workers while they are working under their control, while the intermediary (eg, the agency) has the duty to ensure that the end user has taken steps to ensure workers' health and safety.
Where there are multiple intermediaries (eg, agencies or umbrella companies) involved in an engagement, or the possibility of multiple workplaces, the parties should agree who will take responsibility for which actions. End users are encouraged to engage in active communication with all parties to ensure that no-one's health and safety is compromised.
Must employers provide homeworkers with equipment to use at home?
Employers have no general legal obligation to provide the equipment necessary for homeworking.
In guidance issued during the first lockdown, the government encouraged employers to take every step possible to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. Some employers have developed systems to allow employees to take equipment from the office to satisfy this shorter term need. Some employers are providing a (generally fixed-sum) budget to employees to buy necessary work equipment for working at home, so long as receipts are provided.
Employers should provide equipment or flexibility for employees who are identified as being at risk. In circumstances in which equipment is specifically needed to address health and safety concerns, employers are liable to fund the cost of that equipment (and possibly have a role in selecting it).
Disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act 2010. If such an aid is reasonably needed, employers must ensure that it is provided – at their expense – to individuals when working from home.
Employers and employees should review their respective insurance policies to ensure that work equipment used at home is covered.
There is no income tax or national insurance contributions (NICs) charge where employers provide office equipment for employees working from home under a formal homeworking arrangement if certain conditions are satisfied, including that the property remains the employer's and that there is no significant private use of the equipment. A new temporary COVID-19 exemption has been introduced whereby employers reimburse employees for the cost of office equipment purchased by the employee between 16 March 2020 and 5 April 2021, provided that certain conditions are satisfied, including that there is no significant private use.
Her Majesty's Revenue and Customs (HMRC) has updated its tax rules for employers which cover the expense of providing or reimbursing the cost of homeworking equipment.(2)
Who is responsible for paying any additional homeworking expenses?
Employees will be using their own heating, lighting, broadband and sometimes phone lines while working from home, but it will be challenging to quantify the amount used for work purposes. Employers are not legally required to reimburse employees for such costs, but they may find themselves under pressure to allow employees to reclaim some of these expenses. Employers that decide to meet (a proportion of) these costs should review their expenses policies to cover this.
If employers decide to reimburse employees for the additional costs which employees incur while working at home under a formal working arrangement, employers may pay up to £6 per week (£4 per week prior to 6 April 2020) free of income tax and NICs without the need to see receipts or records of expenditure. If employers decide to pay more than the £6 per week, they will need to:
The exemption is available only for additional costs and, for example, would not include internet or broadband charges which employees were paying for prior to working from home under a formal arrangement.
Is there any tax relief available to employees relating to office equipment and additional expenses?
Some assistance from HMRC is available in respect of both equipment and expenses. HMRC guidance states that payment or reimbursement to employees of up to £6 a week is non-taxable for expenses such as electricity, heating or broadband incurred by employers when employees are working from home.(3)
Employees can also claim tax relief if they are paying for these expenses, although they should not claim where their employer is covering the relevant expenses.(4)
How should employers manage increased risk to data protection and confidentiality created by homeworking?
Information security and confidentiality are more difficult to manage where employees are hosting calls and meetings at home with others in earshot or without the usual office systems in place for securing devices and documents. However, the normal duties to protect employer and client confidential information apply even when employees are working from home.
Employers should set out employees' responsibilities in their homeworking policy (see below) and ensure that employees have adequate means of protecting information. For example, employers should be satisfied with the security of the devices and software that employees are using (eg, the security levels of video-calling software and services). Employers should take care in choosing a secure platform that complies with their security requirements.
The Information Commissioner's Office has produced guidance on the data protection aspects of working from home.
Employees working from home – can they be monitored?
One of the issues which was traditionally raised by employers regarding homeworking was how best to monitor productivity or quality of output and enable effective supervision. Some employers, out of concern that employees are not managing to 'switch off', might also wish to know what hours employees are working.
Even when employees are working from home, employers must still comply with their duties to ensure rest breaks and other working time obligations. Some employers have adopted technology such as lone worker apps through which employees check in on the app at the beginning of the day and check out at the end of each day.
Employers can monitor employees' work activities, but the level of monitoring must be proportionate and reasonable (discussed further below; see also "Lockdowns and remote working – to what extent can employees be monitored?").
What must employers take into account when considering monitoring?
There is no statutory right to privacy in the United Kingdom, but this does not mean that employers have unrestricted monitoring rights. Inappropriate and disproportionate monitoring could lead to claims involving employees' right to respect for private life under Article 8 of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998). Employees also have data protection rights and could claim that excessive monitoring amounts to a breach of the duty of mutual trust and confidence implied into all employment contracts – this may give qualifying employees a claim for unfair constructive dismissal.
In relation to data protection, the Information Commissioner's Office's employment practices code contains good practice guidance for employers in this area. In summary, employers should:
Employers must weigh the perceived benefits to the business of monitoring with the potential impact on morale, employee relations and mental health, which may ultimately lead to a deterioration in productivity (for further details please see "Lockdowns and remote working – to what extent can employees be monitored?").
Should employers amend existing employees' contracts to reflect homeworking status?
Until the pandemic, homeworking was generally considered to be a non-standard, flexible working arrangement, where the default work location was employers' premises. Of course, employees have been working from home during the pandemic out of necessity rather than by choice and the formalised flexible-working request regime has to some extent fallen by the wayside (at least temporarily).
However, employers may wish to think about whether homeworking (or other flexible) arrangements must be formalised in certain cases. Full or partial homeworking may have become a preference for many employees and many employers are considering reducing the office footprint in the longer term. Even in July 2020, employers were already having to manage requests for permanent change. To claim tax and NICs exemptions and relief, a formal homeworking arrangement must be in place between the employer and the employee, under which the employee must work at home regularly, so it is good to record this in writing.
Where contracts are amended to reflect employees' homes as the place of work, employers will need to retain some flexibility to deal with some of the practicalities. For example, requiring employees to attend the office (eg, for training, appraisals or disciplinary issues) and dealing with how expenses for travel to and from the office should be met. If employees move home, this may mean higher travel expense claims or a practical barrier to attending work at the office so employers could consider placing limits on how far employees can move from a particular location. Employers may also want to retain the flexibility to alter arrangements temporarily and consider making a homeworking agreement conditional on certain conditions being met, such as satisfactory performance being maintained.
While the uncertainty continues, employers may decide to keep homeworking under review until a definitive return to the office is possible. If so, employers should continue to make clear that homeworking is, for the moment, a response to an exceptional situation and that once a more comprehensive return to the office is anticipated, employees may make flexible-working requests if they wish to work from home on a more permanent basis. These can be considered on a case-by case-basis (for further details please see "Flexible working post-COVID-19 – sea change or nothing new?").
Some employers have received requests from employees asking whether they can work from home for an extended period overseas. Employers must consider a variety of issues (including tax, social security, immigration and employment implications) before agreeing to any such request where 'home' is not the United Kingdom.(5)
What is the position for new starters who begin employment as homeworkers?
While recruitment activity has slowed in many businesses, it has not stopped completely. Employers may wish to consider whether new recruits should be employed on a working-from-home basis from the outset, rather than stating a work location in the contract which they will not attend for some time.
Location clauses included in contracts can be drafted to state that the work should be performed from home initially, with a move to the office once it is safe and appropriate to do so. Additional obligations could also be included in contracts for new starters regarding access to an internet connection and other communication methods. Employers may also need to provide equipment (eg, a laptop and mobile phone) to individuals who would not normally be provided with these in their role.
Should employers amend existing policies or handbooks?
Many employers are reviewing how existing sickness, data and IT, disciplinary and grievance and benefit policies have been affected by a shift to homeworking.
Regarding sickness and absence policies, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force on 28 September 2020. These make it a criminal offence, where employers are aware that a worker is required to self-isolate, to allow the employee to attend work. In view of the range of circumstances in which employees may be absent from work due to the pandemic, it would be prudent to amend policies to allow for these potential temporary homeworking and COVID-19-related absences.
Regarding data and IT, it would be sensible to address data and information security issues relating to working remotely together with any need to address monitoring or other new ways in which personal data is being processed due to use of remote-working software.
Regarding disciplinary and grievance policies, employees working from home may be unable to attend in-person meetings for disciplinary and grievance procedures and the normal timelines for dealing with issues may need to be altered accordingly. Policies should be updated to ensure a fair procedure for both office workers and homeworkers.
As mentioned above, many employers are either updating or implementing homeworking policies, which draw together many of the abovementioned areas into a single document.
How could homeworking affect employee benefits?
Some benefits have been used by employees in ways that are specific to their office location and may need to be reconsidered.
Homeworkers are unlikely to be using their commuter season tickets, which may have been purchased via an employer loan, and in many cases, employees will already have claimed refunds where possible depending on the provider. Loan arrangements should be discussed and reviewed with employees directly.
Other benefits may be specific to an office location (eg, subsidised or on-site childcare, gym membership and food). There may be alternative ways of helping employees in the longer term while they work from home, such as:
The provision of such alternative benefits may result in an income tax or NIC liability, so employers must bear this in mind and seek appropriate advice.
How can employers ensure that homeworking does not disadvantage certain groups?
Homeworking may have its advantages for many employees, but employers should be cautious about whether homeworking has the practical effect of disadvantaging certain groups, including due to:
Diversity and inclusion policies extend to homeworking and employers should invite and encourage employees to make any disadvantages known so that reasonable steps can be taken to remove or reduce them.
As mentioned above, disabled employees may be entitled to auxiliary aids as a reasonable adjustment under the Equality Act. If such an aid is reasonably needed, employers must ensure that it is provided – at their expense – to individuals when working from home.
For further information on this topic please contact Abi Frederick or Annabel Lindsay at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Advice for working from home".
(2) Detailed guidance can be found here.
(3) Further guidance can be found here.
(4) See here.
(5) For further information please see "Home and away – when 'working from home' means working abroad".
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