September 2020

For many of us, the COVID-19 Alert Level 4 lockdown was the first experience of what it is like to work from home. Some are now exploring the possibility of continuing this either in a flexible or permanent capacity. In this article we explore some of the key considerations for employers and employees looking at continuing remote-working for its employees.

Health and safety is paramount

When an employee works from home, the home (or part of it) will be a ‘place of work’ for the purposes of the Health and Safety at Work Act 2015. Employees will not necessarily have a safe workstation at home and it will be harder for employers to ensure employees are taking adequate breaks. Work-related stress or workplace (online) bullying may also be hard to detect. Employers should consider:

• what the health and safety risks are working from home and how to manage them;
• how employees will report incidents that happen when working from home; and
• whether their health and safety policies need to be updated.

Temporary or permanent variation?

Changes to an employee’s working conditions such as the location of work can be considered a variation of employment, even if not recorded in writing. If you are looking at allowing employees to work remotely, either on an intermittent basis or permanently, you must communicate clearly with your employee about how this will work and for how long. Employers should:

• determine whether the arrangement will be permanent or temporary, and whether there should be any restriction on who can work from home;
• communicate this clearly to staff and obtain agreement about the parameters around remote working and when this will come to an end and put it in writing; and
• if this is a permanent arrangement, arrange for a formal variation to be recorded in writing.

Privacy (both of your employee and client information) and information security

Security of personal information is a key concern when an employee is working remotely. An employer should have a clear policy around the protection of personal information and data both in and out of the office. Employers should consider:

• What information or data will the employee need to have with them at home to meet the requirements of their role? Can that information be accessed remotely?
• How can that information be protected while not in the workplace and how does this fit in with the obligations under the Privacy Act 1993 (and from December, the Privacy Act 2020)? How will the business protect against possible privacy breaches?
• If information is stored by third parties, consider whether that third party’s security protocols and policies are satisfactory.

Setting clear expectations around workload and performance

Employers should set clear expectations around ongoing communication, deadlines and activities. Mismatched understandings can result in significant stress and frustration for both employers and employees. Employers should consider:

• What are the current workflow practices in the workplace and how will these need to change when employees are remote working?
• What are the expectations around customer or client contact? How will this be managed?
• What level of communication must there be between employees and their supervisors or managers?
• How will problems with this way of working be addressed and resolved?
• Will there be regular scheduled meetings with team members?

And what about the costs of working from home?

Allowing remote working, even on a temporary basis, can also have flow on financial effects for both the employer and an employee. Employers should consider:

• Will there be any financial implications (such as fringe benefit taxes)?
• Will the employer pay the employee any additional compensation to contribute to the added costs of working from home (for instance heating)?
• Will other employee benefits be affected (for example the use of work vehicles)?

For any such arrangement to be successful, an employer should set clear expectations around how the remote working practice will work and involve the applicable employees in making those decisions. There will not be a one size to fit all approach for all businesses, but a tailored policy addressing these issues will help businesses to implement successful working from home arrangements.