The current COVID-19/coronavirus pandemic has undoubtedly affected the lives of most people. Whether it be as a result of contracting the virus, the illness of a loved one, being in lockdown, being furloughed or simply the mental strain brought about by the uncertainty of when things will go back to normal, the pandemic has touched everyones’ lives in a way that nothing else in recent times has done.
For many one of the most dramatic changes to their lives has been the need to accept, and make the most of, working from home and the pressures that this has placed upon employers, employees, families and relationships.
This week’s announcements by the government as to the timescales for the UK being able to lift COVID restrictions and the need, in any event, for everyone to avoid as much as possible unnecessary meetings and close proximity to others, means that it looks as if many will be continuing to work from home for some time to come. Even controlling COVID may not bring an end to home working. Many employers and employees are beginning to realise that home-working is something which can actually have benefits both to the firm and to the employee. In other words, despite some of the difficulties that exist nevertheless there is a growing realisation for many that working from home could continue to become the “new normal” for a large number of office-based staff.
The ad hoc approach to home working
The way that the pandemic has developed means that many caught up with issues of home working have assumed that it was going to be a short-term, temporary “fix” – something not intended to last for more than a couple of months before everything returned to normal. Accordingly, many employers took a day-by-day approach to home working relying on employees using laptops, home computers, shared family technology and the kitchen table or bedroom dressing table for a desk.
Whilst this may have been an adequate solution in the short-term, as things develop into, more longterm arrangements, so firms have to start to think more seriously about addressing some of the problems that could arise. These include the need to review home-working practices and policies – assuming that they even have any in the first place, adopting and implementing home-working procedures and safeguards, checking on how safe and secure the employees home-working space actually is and addressing other issues such as the employees ability to work in their home environment and their mental welfare when doing so.
The issues to be aware of
So what do firms need to give thought to in relation to home-working by staff?
The first issue is whether their staff need to work from home. At the time of writing (February 2021) we are still in the middle of a national lockdown and everyone is being urged to work from home unless the nature of their work precludes them from doing so. For most law firms, this will mean making an assessment as to whether particular staff can operate from the home environment using emails, phone calls and video conferencing or whether they actually need physically to be in the office in order to carry out their function. Those whose role is largely administrative, or who can provide advice and services to an adequate level whilst working from home, clearly should do so. Those who need to come to the office need to have steps taken that will keep them safe including the provision of protective equipment, the construction of screens, safe practices in relation to meetings including the use of masks, visors, social distancing, hand sanitisers etc. and the enforcement of rules in relation to those visiting the premises.
But what of those not in the office? Is there a health and safety duty that firms owe to them?
The simple answer is yes, although clearly the nature of those duties will differ from those owed to staff on the premises. As an employer, you have the same health and safety responsibilities for home workers as you do for any other workers – whether or not they are home working permanently or temporarily. For that reason, you will need to give thought as to how you will keep in touch with staff, what kind of work you will be expecting them to carry out at home, what resources need to be put in place to ensure that this is achievable and what controls you need to implement in order to keep those workers safe.
An obvious first step for firms is to carry out a risk assessment of those working from home so that the firm can judge where potential dangers lie and get a picture of not only how homeworkers will work but the conditions in which they will be carrying out that work. The precise form that this assessment should take will, to a large extent, be dependent on the type of work which is being undertaken at home. Bear in mind that the Health and Safety Act 1974 and the Management of Health and Safety at Work Regulations 1999 provide that employers are under a general duty to carry out risk assessments of all types of activities that employees undertake and identify hazards, assess associated risks and then take such measures as are necessary either to remove those hazards or, where this is not reasonably practicable, minimise the risks associated with them.
Firms should also be aware of the potential for an increase in mental health issues resulting from home working. Whilst many welcome home working as being a solution to the problems of juggling home and work life, equally there are many for whom the loss of face-to-face interaction with colleagues, loneliness, the stresses of home life or simply being confined to one small space for long periods of the day can have a negative outcome. A 2020 report produced on behalf of Buffer and AngelList (https://lp.buffer.com/state-of-remote-work-2020) revealed that whilst 98% of remote workers want to continue to work remotely (at least for some of the time) for the rest of their careers, loneliness was consistently selected as the top struggle for remote workers. The previous year’s report from the same organisation had found that 22% of remote workers found it hard to switch off from their work when they worked from home and 19% suffered from loneliness whilst a 2017 report from the European Foundation for the Improvement of Living and Working Conditions found that as many as 41% of remote workers suffered from high stress levels.
Thought must also be given to the actual physical working conditions of employees working from home. Poorly designed workstations or work environments, can lead to physical pain, fatigue and eye strain. Many who work from home may be working on laptops without separate screens, on tables and make-shift desks, using ordinary household chairs and in environments that are not ideally suited to prolonged screen use. Although this is not so much of an issue for those staff who only work from home on a temporary basis, it is an issue for those engaging in prolonged use.
Guidance from the HSE states that whilst employers cannot be expected to carry out full home workstation assessment on those working temporarily from home, those likely to have more prolonged use should have the health and safety risks that come from home-working assessed and appropriate steps need to be taken to address any issues which arise.
Similar issues surround the provision of technology. Should the firm supply the homeworker with the equipment for them to use at home or rely upon them to use their own equipment? Whilst there is no general legal obligation to provide equipment for home-working, guidance issued during the first lockdown encouraged employers to take all possible steps to encourage employees to work from home, including the provision of the necessary equipment to facilitate remote working. Possibly the key point to bear in mind here is to consider the productivity of the individual concerned. Working on a shared home computer rather than a firm supplied laptop and screen – which can be had for £500 to £750 – could be a false economy if the employee is not able to work effectively for large parts of the day.
Confidentiality and supervision
A key issue to which all firms will need to give consideration is that of confidentiality. COVID does not relieve firms from the need to be careful and vigilant in relation to confidential client or firm information or in relation to issues of data protection. Thus, before allowing any employee to work from home, the firm must make sure information is secure, that files can be stored safely and that others within the employee’s home, whether they be relatives or simply co-tenants, do not become privy to confidential information.
It is vital, therefore, that firms get an idea of how and where the employee will be working, the extent to which the space they occupy is private, whether they can make confidential phone calls, whether they can lock computers so that no one else can access data and whether others have access to the electronic equipment that they use.
Another key feature of legal practice that does not go away simply because employees are forced to work from home is that of supervision. Firms need to think about how they will monitor the work of the employee, provide them with the adequate level of back up and management, undertake file reviews and generally ensure that the employee is giving the right advice to the client or following the appropriate process or procedure? It will be no defence to a charge of negligently not supervising an inexperienced staff member that they were working from home at the time that the error occurred.
Employment rights and obligations
Another factor to which firms need to give consideration is in relation to the employment rights and obligations of employees who are home-working and of the firm’s obligations and rights in relation to the employees. Allied to this are the practicalities of enforcing and preserving those rights and obligations where the employee is not coming into the office on a daily basis.
Thus, issues such as holidays, time off in lieu, disciplinary and grievance processes, and overtime payments need to be considered alongside the other factors which will may be unique to the unusual circumstances surrounding COVID and to which employers may need to give more latitude to employees working in lockdown. These can include time off for stress or COVID related illness, flexibility to allow employees to care for others, the need to look after children during the working day because schools and nurseries are closed or the need to assist children with home and remote learning.
In addition, thought should be given to issues relating to equality and diversity such as whether arrangements being put in lace have the potential to discriminate, either directly and indirectly, against certain groups within the firm. Among the issues to which thought should be given are:
- problems faced by those living in shared accommodation;
- problems for those who live with extended families;
- issues relating to disability and reasonable adjustment;
- caring responsibilities; and
- lack of internet access in rural areas.
Finally, firms need to think about the future. In addition to dealing with the problems of the here and now, careful thought needs to be given as to how the firm will move forward when the impact of the pandemic is lessened. Is home-working something that the firm can continue to do in the future – and thus potentially reduce office overheads and improve staff work-life balance – or is it something that can only ever be a short-term solution to address a current problem?
If it is the former the firm may want to put in place provisions that will enable the firm to maintain home-working in the future. If it is the latter, then the firm will want to do as little as possible in terms of supporting home-working because it knows that come the lifting of lockdown and restrictions on meeting it will be reverting to its previous model for working.
How Infolegal can help
The Infolegal Compliance Hub offers all members and their staff access to its training modules, factsheets, precedents and other materials, whether they are working from the office or working from home. In addition, we Infolegal has produced a “COVID-Aware” Working from Home Policy document for firms to adopt, a self-assessment questionnaire for staff to help firms assess risk and a Working From Home factsheet covering many of the issues that firms need to consider going forward. Finally, coming soon will be a range of resources for firms to put in place to assist staff working from home including registers, information pages, risk assessments and much more.
For more information please either call us on 0203 371 1064 or email us at firstname.lastname@example.org