Covid-19: An employer’s guide to homeworking
Catherine Casserley
Ruaraidh Fitzpatrick
Tom Gillie
Donning business garb over pyjama before meetings and working from sofas and coffee tables will be the “new normal” over the coming months. But employers’ duties to their employees do not stop merely because workers are required to work from home during the ‘lockdown’ period. In this guide Tom Gillie, Ruaraidh Fitzpatrick and Catherine Casserley set out particular considerations for employers in relation to:
Health and safetyduties associated with homeworking;
Breaks;
Tax exempt expensesassociated with working from home;
Insurance;
Disabled employees.
This is the sixth in a series to examine how the interplay between the workplaceand the corona virus leads to novel problems for lawyers.
Health and safety
Employers must stillprepare and revise risk assessments and provide safe systems of work and a safeworking environment. Section 2 of the Health and Safety at Work etc. Act 1974provides that employers must, inter alia:
Provide safesystems of work and working equipment;
Provide relevantinformation, instruction, supervision, and training;
Provide a safeworking environment;
Make arrangementsfor workers’ welfare at work; and
Prepare andrevise risk assessment(s).
Undertaking risk assessments of homeworking workers
The centrality ofassessing risk was restated by the Supreme Court in Kennedy v Cordia [2016] UKSC 6 [89]. Assessing risk is all the morepressing where work is being undertaken in a novel manner. To satisfy their obligation to prepare andrevise risk assessments with a ‘work from home’ workforce, employers may:
Remind workers totake breaks as usual;
Remind workers tokeep to ordinary working hours as far as is it is possible to do so;
Mitigate theimpacts of workers being deprived of their ordinary or full workequipment;
Remind workers ofthe need for adequate light while working;
Take account ofand mitigate risks posed by isolation, etc.
Employers with few workers may wish to consider conducting dynamic riskassessments via telephone to identify and mitigate risk.
We set out belowprincipal areas of risk that employers (and employees) may wish to consider inrelation to employees who are homeworking over the coming months.
Display ScreenEquipment
Employers must managethe risks associated with using DSE on a long-term basis. During the lockdownit is not possible to undertake home workstation assessments for employees.However, it would be sensible for employers to ensure that staff have easyaccess to DSE polices and advice. The Health and Safety Executive (“HSE”)recommend that employees take simple steps themselves to mitigate the risksfrom display screen work:
breaking up longspells of DSE work with rest breaks (at least 5 minutes every hour) or change inactivity;
avoiding awkward,static postures by regularly changing position;
getting up and movingor doing stretching exercises;
avoiding eye fatigueby changing focus or blinking from time to time.
It is advisable foremployers to ensure that staff members are aware of such basicprecautions. A workstationchecklist that workers mightrun through from home can be found on the HSE website. Thought should be givento encouraging workers to try ‘other ways of creating a comfortable working environment’to replicate the effects of adjustable chairs and other pieces of officefurniture. Greater movement and stretching may be needed if homeworkers cannotminimise the risks of prolonged use and awkward postures
If employers dorecommend that employees have specialist equipment at home, they should ensurethat any risks associated with the delivery of such equipment are assessed.
Welfare and mentalhealth
Many workers now facethe prospect of working from home, alone, and for a prolonged period. This maybe coupled with feelings of anxiety caused by the pandemic and concern for illfriends and family members. Employers should take care that workers’ welfare isadequately supported at this time. Employers may wish to consider the followingpoints:
do workers knowwho to contact should they require assistance?
are managersincreasing the number of one-on-one meetings to monitor worker welfare?
are managers trainedto recognize signs of stress and anxiety?
are employeesbeing made aware of employee assistance programmes, including copingstrategies and well-being, where available?
are colleaguesable to contact each other?
It may be moredifficult for employers to recognise signs of stress in workers who are not inthe workplace over many months. Employers should seek to ensure that they paycareful attention to indicators of stress that are observable, for example,performance levels and the number of complaints and grievances in teams; anddecreased motivation or changed emotional responses in individuals.
Beingaway from managers and colleagues may make it harder for workers to get propersupport if they are suffering from stress or anxiety caused by isolation.Employers should consider how they might:
continue toeffectively monitor their workers’ well-being without regular face to facecontact;
ensure employeesand workers have easy access to remote channels of communication;including clear instructions about how to contact managers remotely andwhen;
ensure employeesare reminded of sources of support including Employee AssistanceProgrammes and mental health charities (bearing in mind that it may bemore difficult for workers to contact their own GPs easily and quickly asthe coronavirus outbreak puts greater stress on health providers);
provideopportunities for employees to interact remotely and to continue todevelop collegiate professional relationships while they are homeworking.Employers may wish to consider the use of group video calls to bring teammembers together, for example;
mitigate sourcesof additional stress relating to remote working techniques, including byensuring workers know how to use additional remote-access technology andthat they are provided with appropriate guides to remote workingplatforms.
Employersshould also ensure that their stress risk assessments are up to date. The HSEoffer useful resources on communication and stressmanagement. Thecharity Mind has a useful resource on wellbeingand the coronavirus.
Accidents at home
Homeworking (it ishoped) will be low risk for the vast majority of employees. Nevertheless, some seriousaccidents or injuries at work should be reported to employers wherever theyoccur. It is therefore strongly advisable that employers establish procedurespermitting homeworkers to report accidents when working from home. See theemployers’ duties under Regulations 4, 7 and 12 of the Reporting of Injuries, Diseases and DangerousOccurrences Regulations 2013/1471 for further details.
Employers’ dutiesunder regulations 3 and 4 of the Health and Safety (First-Aid) Regulations 1981/917 persist notwithstanding that employees are workingfrom home. In particular, employers should ensure that employees have adequateand appropriate provision of equipment and facilities at home if they becomeinjured while at work at home; and inform employees of arrangements that theemployer have made in connection with the provision of first aid. They shouldalso have access to adequate first aid facilities. The HSE has released new guidance on lone working, including home working, which suggests that homeworkers should have“access to adequate first aid facilities”. In the context where people areworking from their own home, it is likely that the risk of injury while at work, rather than doingnon-work daily activities such as cooking,will be low. In those circumstances it is likely that access to a simplefirst aid kit, or its component parts, will suffice. Employers should also provide home workerswith access to “emergency procedures”, that should “also include appropriateguidance on how and when lone workers can contact their employer”.
Breaks
It is unlikely that employers will be able tomonitor easily how, when and whether homeworking employees are taking breaks.It is therefore vital that the limits of working time are established byemployers. They should establish whether homeworkers will observe strict officehours or, alternatively, specify “core hours” when employees and workers areexpected to be available for work. Employers should also be conscious that some diligent employees left totheir own devices may begin to work over their contractual hours. In suchcircumstances there is some (albeit perhaps a small) risk that some employees,especially those seeking to prove their worth in difficult times, might work inexcess of the maximum weekly working hours and minimum work breaks set down inthe Working Time Regulations 1998 (SI1998/1833). Employers should ensure they make it veryclear that homeworkers are responsible for regulating their own working time andtaking breaks as appropriate. It may be sensible to make contractual changes tothat effect if employers foresee that working from home may be prevalent fortheir business for the foreseeable future.
Anecdotalevidence suggests that employees who would normally be office based but who arenow home working are nevertheless visiting office premises from time to time tocollect documents or equipment required for work, or to monitor the premises.The matter of whether a homeworker is entitled to claim travel time foroccasional business premises visits as working time has not fallen underjudicial consideration. Where such travel associated time is required byemployers it may well be that it falls within the definition of “any periodduring which [a worker] is working, at [the worker’s] employer’s disposal andcarrying out [the worker’s] activity or duties” in Regulation 2 (1).
Taxation
Employees mayneed to purchase additional equipment to work from home properly for a longperiod. Working from home may cause additional household expenses. Employers canmake tax free payments to employees for certain costs associated withhomeworking in certain circumstances. It is advisable to let employees knowthat there may be such tax implications to do with homeworking. The rules abouttax free expenses are complex and extensive; the following provisions that arelikely to be particularly useful are set out in outline below.
Expensesassociated with supplies and services
Under section 316 Income Tax(Earnings and Pensions) Act 2003 (ITEPA) some expenses that an employer incurs inproviding employees with supplies and services which they use to work from homeare free of income tax. To be eligible the supplies or services must have thesole purpose of enabling the employee to perform the duties of theiremployment; and be services or supplies that the employee uses to perform theduties of employment. The tax exemption will not apply if the employer has a mixed motive (i.e.partly for private use).
HMRC’s guidance suggeststhat ‘it is highly unlikely that any private use’ made of computer devices andequipment to employees for work purposes ‘will be significant when comparedwith the business need for providing the computer in the first place. In thesecircumstances section 316 ITEPA will apply and no tax charge will arise’. Theexemption may also include stationaryand normal office or workshop materials and supplies; and internet connection, mobile phones, and telephone lines incertain circumstances.
Additionalhousehold expenses
Employersmay make payments free from income tax or national insurance contributions toemployees for additional household expenses under section 316A IncomeTax (earnings and pensions) Act 2003 (ITEPA). Employees qualify for a tax deductionagainst costs that have actually beenreimbursed by their employer where they:
incur reasonable additional household expenses;
in carrying out their employment duties at home;
under homeworking arrangements.
HMRC expectsemployers to keep records to show how the payments have been computed. This maydepend on retaining evidence provided by employees about the amount of theadditional costs. Actual reimbursed expenses generally fall to be treated as earnings for taxpurposes (see ss. 70 to 72 ITEPA). Note that reimbursed expenses will not be exemptfrom tax if the expenses are subject to a salary sacrifice scheme.
Where itis difficult to calculate the exact amount of additional household costs,employers should calculate payments to meet reasonableadditional household expenses. Note that employers can agree to a payment of £4per week or £18 per month to an employee working regularly at home, without theemployer having to justify the amount paid. HMRC wouldexpect that £4 per week would be sufficient for most cases where the additionalcosts are only for heating and lighting the work area. Employers must ensure anappropriate system is in place for checking that employees are incurringexpenses and that the expense would be tax deductible. In addition, theemployer must neither know or suspect (or could reasonably know or suspect)that the employee has not incurred the expense or that the expense would not betax deductible: see section 289A(2)-(6),ITEPA.
PAYE isnot applied to exempt expenses and the payment is not reported to HMRC by theemployer (on form P11D).
Insurance
Someemployees will have particular conditions in mortgage agreements and tenancyagreements prohibiting them from using their accommodation for businesspurposes without prior permission. It is important that employees check theterms of their lease or mortgage agreements for this eventuality; and, if itexists, to inform their landlord or mortgage provider of their intent to workfrom home and to confirm that they are authorised to do so.
Employeesshould also try and obtain from their home insurer confirmation of cover shouldwork equipment cause damage and for a claim from a third party. ACAS advises that the employer should say if it will pay theextra if the employee’s premium rises as a result. Work property and a claim bya third party should be covered by the employer’s insurance policy, butemployers should confirm this with their own insurers.
Disabled employees
It is important thatany adjustments made for disabled employees and workers at work to enable themto carry out their job effectively are also made so far as possible in a homeenvironment to facilitate their effective working. There may be other employeeswho have not declared disabilities but who may nevertheless struggle withworking at home; particularly those who suffer from mental health conditionsamounting to disabilities. Employers should, of course, consider the needs ofworkers and employees on an individual basis; nevertheless we hope thefollowing general guidance will assist employers:
Don’t makeassumptions – talk to the employee about what they have at home, and whatthey might need.
If there isparticular office equipment at work which an individual might need, suchas a supportive chair, consider whether the equipment can be delivered totheir home.
If an employeehas non physical adjustments, for example, to their hours, ensurethat these continue at home.
A standing deskmight help with back and muscular skeletal issues when people are likelyto be at their desks for long periods, if feasible.
Encourageemployees to have Apps that ensure they take regular breaks.
If relevantadjustments cannot all be made, there may be a consequential impact on anindividual’s performance. Make sure that allowances are made for this.
Morecommunication is likely to be done on remote networking platforms (Zoom,Microsoft Teams etc.). Consider whether those platforms are accessible todisabled people. Make sure the technology you use is accessible tovisually impaired people using a screen reader and that those with hearingimpairments can access any meetings.
Those who areneurodiverse may find some methods of communication more difficult to dealwith in new ways of working – ensure that there are user guides availableand training for them if required.
Access to Workremains available to conduct workplace assessments; but not face to face.
Above all, keep in touch with your disabled and non disabled employees alike and make sure that they are supported.