Over the past month our employment team has successfully hosted two employment seminars for businesses based around our Redhill and Farnborough offices.
The seminars addressed the positives and pitfalls of the emerging hybrid home working model and invited delegates to share some of the issues they’d been experiencing over the past 18 months or so.
Set out below are some of the key points discussed which employers need to carefully consider in light of the growing transition to home/hybrid working.
- What responsibility do employees have to keep company information confidential?
All employees have a duty not to disclose confidential information belonging to their employer or use it for any purpose other than the employer’s business during their employment. Most employment contracts will contain a clause defining or describing what is meant by “confidential information” within their own organisation.
- What precautions can employers take to ensure staff keep information confidential while working at home?
Practical steps to keep confidential information secure may include;
- Prohibiting use of personal devices/equipment or personal email accounts for business use;
- Requiring mandatory passwords and encryption;
- Securing confidential papers in a lockable drawer or filing cabinet:
- Facilities for confidential disposal such as a shredder; and
- Provision of secure IT systems
It’s strongly advisable to update the relevant your policies or contracts in light of greater home working and in so doing help avoid any ignorance or misunderstanding of what is expect and required.
Data Protection and employee monitoring
- Can employers use I.T. to monitor employee’s activity?
Yes providing any monitoring is both proportionate and reasonable.It is likely that staff will not take well to having their every movement tracked so tread carefully as you do not want to risk a disgruntled workforce. You will need to find a way that works for you as the employer whilst maintaining the trust and confidence of staff.It is important to recognise that inappropriate and disproportionate monitoring could also lead to claims involving the 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) and/or breach of the Data Protection Act or even claims for constructive unfair dismissal.The safest approach is to complete a privacy impact assessment setting out the purposes of the monitoring, the adverse impact on data subjects, the mitigation and its justification and then consult staff.
- What other things should be considered?
- If sensitive data is being processed, ensure that the requisite legal basis for such processing is being met;
- Limit the number of people who have access to the information and ensure that they are properly trained in confidentiality and data security.
- Do not use covert monitoring except in the exceptional circumstances (e.g. where criminal activity or similar is suspected).
Risk assessments and home set up
- Does an employer have a duty to look after staff when they are working from home?
YES – Companies are responsible for an employee’s welfare, health and safety so far as is reasonably practicable wherever they are working.
- What should employer’s do to discharge this duty?
Employers should conduct a suitable and sufficient risk assessment of all the work activities carried out by your employees, including homeworkers, to identify hazards and assess the degree of risk to decide what measures you need to put in place.
- How can risk assessments be conducted?
Different companies may carry this out in various ways depending on its size and resources. Examples include:
- Visiting the premises;
- Asking for photos or video footage (but remaining mindful of privacy); and
- Asking the individuals to complete a workplace assessment / signed statement.
Contracts and policies
- How can employers amend contracts to include a working from home provision?
For new starters this should be straight forward as companies can prepare a fresh template to incorporate all the new elements required as a result of home or hybrid working.For existing staff, it can be a little more difficult, especially where employers seek to make changes to existing terms and conditions of contracts of employment.There are various ways this could be approached, including:
- Seeking the employee’s express agreement to the new terms(either on an individual basis or through a collective agreement which is binding on the employees concerned).
- Unilaterally imposing the change and relying on the employee’s conduct to establish implied agreement to the change.
- Terminating the employee’s employment and offering re-employment on the new terms (“Fire and Rehire”).
Some of these approaches are riskier than others and we strongly recommend that companies take advice on their specific circumstances to determine the best way forward.
- It is likely that most companies will need to introduce or update their policies to deal with a hybrid working arrangement. Which policies are most likely to be affected?
- A homeworking policy;
- A flexible working policy;
- An expenses policy;
- An IT and communications policy; and
- A data protection policy and associated privacy statement.
Hopefully the above should give you plenty to think about if and when your business wants for formalise any new remote or hybrid working arrangements. If you would like to discuss any if the issues raised, or have any additional concerns, please do not hesitate to get in contact with a member of our Employment team.