Member Article

COVID-19 has definitely changed the way in which we work. When many people started working from home back in March 2020, it was seen as a short-term, temporary arrangement to help combat the effects of COVID-19. Fast forward 12 months and homeworking is widely considered to be here to stay. 

In our webinar (kindly hosted by Macmillan Davies), our employment law and health and safety experts talked through the key issues for businesses to be aware of. The key takeaway points are set out below.

• Employers should be mindful that the duty to look after the health, safety and welfare of its employees, under health and safety legislation, applies regardless of whether the employee is working from home or not. Out of sight should not mean out of mind. It will, however, mean that there are different considerations and different control measures that may be required to mitigate risks. Similar duties may also apply in relation to contractors which will depend on the extent to which your organisation has control over such third parties.

• If businesses are considering making homeworking the ‘new normal’, it is likely that contractual and policy updates will be necessary. For example:

• What does the ‘place of work’ clause say in the contract of employment? Are employees going to be required to work a certain number of days from home?
• Are home-working expenses going to be paid?
• Does the employer have the right to enter the employee’s home? This may be necessary, for example, if the employer wants to test equipment or carry out a health and safety risk assessment.

• Working from home – regardless of whether it is temporary or permanent – can also expose employers to risks of confidentiality breaches. Employers should therefore make sure that the contract of employment includes an express confidentiality provision and put appropriate procedures in place to ensure that confidentiality is maintained.

• Employers should be mindful of the fact that health and safety legislation places a duty on employers to look after their employees’ ‘welfare’ which means considering their mental health as well as physical health. It is important for strategies to be adopted in order to identify and manage these risks. Furthermore, if there is a move towards employees working from home on a permanent basis, there will be additional DSE considerations that will need to be taken into account in order to actively manage musculoskeletal disorders.

• If employers don’t give proper consideration to their employees working arrangements, there are a number of potential consequences which are all likely to cost the business money in the long-term:

• Negative impact on employees’ mental health.
• Reduced productivity and engagement.
• Personal injury claims/criminal prosecutions (we anticipate the HSE will focus on stress at work and a prosecution may not be far away).
• Employment-related claims (e.g. constructive unfair dismissal or whistleblowing).
• Data and security breaches.

• In recent weeks, there has been a lot of press about employers taking the so-called ‘no jab, no job’ approach to recruitment. If businesses are minded to take this approach, they need to consider the following:

• Does the contract or offer letter need to be updated to make the offer of employment conditional upon the candidate being vaccinated?
• The potential discrimination risk. One obvious example of discrimination would be age discrimination (as such a policy would disadvantage younger candidates who aren’t currently able to get the vaccine).

• For employers which are considering requiring their existing workforce to be vaccinated, we would recommend that they check out our previous article here, which covers the key issues.

• Another current ‘hot topic’ relates to Covid testing and whether or not employers can (or should) be asking their employees to undertake regular testing. Whether or not Covid testing is necessary and proportionate will depend on the working environment (for example, it is unlikely to be reasonable in an office environment where social distancing is possible). If employers are going to go down the route of testing, they need to make sure that they consider the data protection implications. In particular, they will need to consider whether they have a lawful basis for the processing. We would also expect that a data protection impact assessment is carried out and it may be necessary for employers to update their privacy notices. The ICO has released guidance on testing, which can be found here.

Conclusion

One thing that is clear from the subject of this webinar is that the future is uncertain. Will things stay the same? Go back to how they were? Or be a blend of the two? Either way, as we see the light at the end of this tunnel and our, hopeful, imminent exit from this pandemic, it is envisaged that there is a considerable amount of change still to come. We can see the legal challenges to health and safety legislation as well as employment law decisions that will shape the future of the workplace. We do, however, hope the workplace (wherever that may be) is a happy one, a safe one and one that has benefits for all.

 

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