08/02/2021 – Returning to normality, HR implications
In March 2020 many of our working lives changed, and will probably never be the same again. Almost a year on, vaccines are rolling out, the second wave of infections appears to be on the decline, and a return to some kind of pre-March 2020 seems to be on the horizon, perhaps as soon as the summer.
But many myHRdept clients are telling us that a return to a carbon copy of pre-Covid working conditions seems unlikely, that homeworking is likely to stay, and that it may well be a lot more difficult to persuade people to return full-time to the office than it was to send them home in the first place. So, what should employers start thinking about in weeks ahead, ready for some kind of return to the office?
Homeworking – is it now a reasonable right?
Homeworking proliferated during the pandemic, and whist it will not, as a result, have become an automatic right for employees to insist on being allowed to work at home, many employers previously dubious about homeworking will have seen that it is possible and efficiency can be maintained. In some cases, where an employee has a disability for example, the argument that homeworking constitutes a ‘reasonable adjustment’ will have gained considerable strength over the last year, and it will be harder to argue that it is not a possible reasonable adjustment. Employers seeking to contest this may have a greater chance now of finding themselves on the wrong side of the Equality Act 2010, in the case of a legal dispute.
The benefits and challenges of homeworking
Homeworking offers advantages in terms of reduced commuting time (and pollution), and many employees claim their productivity has increased. Permanent homeworking, however, may adversely impact employee’s mental health, and its well documented that these issues are starting to emerge. Aside from the impact on employees, permanent homeworking presents a challenge for employers in terms of monitoring the quality of an employee’s work, particularly in industries where client relationships are important. Employers should take the time to weigh up the benefits of homeworking against the downsides, and ensure they have a plan in place to help spot likely issues. This could be as simple as scheduling a 3 monthly homeworking review meeting, to ask employees how they are doing, whether they have the correct equipment and support, and whether any of the more obvious symptoms have started to occur.
Homeworking – when cracks start to appear
As we’ve said, an employer is not required to grant homeworking. However, an enforced trial of over a year during the pandemic is likely to show that in many cases, homeworking, or some homeworking, can be effective.
Of myHRdept clients whose staff are permanently homeworking, some are reporting that over time, homeworking cracks are starting to appear. Sporadic contact through video calls leaves large gaps of non-contact, impromptu opportunities for communication are lost, and junior and new staff cannot learn simply by being present in the office, instead they are alone and out of contact for most of the day. These things threaten not only quality standards, but the very ‘culture’ of organisations. Do we know that staff are representing us to customers in the manner we expect? A problem may only be apparent if a customer complains, and by that stage, it might be too late.
Future technology may allow continual virtual face time in a simulated office environment, addressing many of these concerns, but we’re not there yet, and in the meantime, many employers will require some level of office attendance from their staff, if only to help address some of the issues we raise here.
Has homeworking become a more likely ‘reasonable adjustment’?
The conclusion, from most employers forced into homeworking, has to be that homeworking is likely to be on the list of feasible reasonable adjustments for people whose disabilities (mental or physical, as defined in the Equality Act 2010) require employers to consider adjustments to accommodate them in the workplace. It would look odd indeed for an employer to claim that homeworking wouldn’t work if they, or other similar organisations, suffered no major damage from homeworking during the pandemic.
Where employers sometimes go wrong here, is by taking a narrow a view of proof that homeworking does, or doesn’t work, in their own organisations. At myHRdept we’ve often listened to employers who will say with conviction that two part-time employees cannot possibly share a role. Yet another client in exactly the same industry will have employees doing just that. If employers aren’t to fall foul of future tribunals, they must be open minded when it comes to the consideration of reasonable adjustments, homeworking included. Being open minded involves approaching an issue with a view to figuring out how homeworking can be made to work. By contrast, a closed minded approach will see employers looking for reasons to show that it won’t.
What should employers be thinking about, if they plan to continue to allow some homeworking?
We were rushed into home-working in March 2020, but employers should not assume that in the normal course of events employees can be simply sent home to work, without further thought. There are many considerations, and we suggest employers take the time to form a home-working policy – a proper one that suits them, not a template downloaded from the internet. We’ve listed some, but by no means all, of the considerations below.
Can the employee work safely and effectively at home?
Some industries of course cannot homework. But in many others, it is possible for some roles to be effective in a suitable homeworking environment.
Some, particularly younger employees, won’t have very much space at home, and may not have adequate seating etc. which could lead to physical problems (and potential claims against their employer) in the future. Employers should consider homeworking suitability and risk assessments completed by employees themselves as a first stage. Some employers may wish to go a stage further, carrying out physical occupational health assessments of the employee’s home workstation by suitably trained OH staff. Where improvement needs are identified, employers should consider providing suitable desks/chairs, etc. and HMRC allows for the reasonable cost of these to be offset against tax.
Where homeworking does not seem reasonably safely possible, office space should be prioritised.
Some employers might want to risk assess all employee’s suitability for a return to work generally, highlighting those whose return would increase the risk of contracting and spreading infection. High-risk indicators would include those who have to use public transport to get to work, for example. It would also include those with known medical vulnerabilities, and in particular those on the most critically vulnerable list.
Having identified those who present the highest risk to themselves or others, it would seem sensible to hold discussions with employees in that group about their continuing to homework, perhaps for longer, or more often than others. Some people in the highest risk group won’t want to work at home all the time, and employers should discuss with them the risk mitigation measures that might be applied, and these needn’t be complicated. For example, if an employee has to use public transport to come to the office, could their working hours be altered to avoid the peak commuter periods?
What about childcare?
This is potentially one of the thorniest issues when it comes to ongoing homeworking. At the moment, most of myHRdept’s clients are sympathetic to the fact that our staff are homeworking, our ability to visit client sites greatly curtailed, and some of our staff have children playing in the background while we’re on client calls. This tolerance will only last as long as the pandemic does, and the point will come when ‘normal’ service must resume.
Homeworking and caring for children generally don’t go well together, and it would usually be reasonable for employers to require a homeworking employee to have childcare arrangements in place for young children who are not at school or nursery. If childcare is impossible, it may be possible to agree on a change of hours (and pay, etc.) to match school hours. Employers should talk to employees and try to solve problems together, and fairly for both.
What about data security?
Data security is both physical and virtual, and Data Protection Policies may need updating for homeworking. Additional risks can be avoided by ensuring staff don’t share work laptops & phones with family, don’t download unauthorised apps, and only use work equipment for work matters. The use of secure VPNs to access networks should prohibit unauthorised access. There are physical risks too – the potential of theft of documents and equipment, perhaps through that open window on a sunny spring day. After a year of record dog sales, many will have discovered the damage that can be done to expensive equipment by puppies and young teething dogs!
What about expenses/tax implications for home-based employees?
If deciding to make employees home-based, there may be an expectation that employees receive expenses for attending the office for meetings – this is an HMRC-allowable expense for home-based people, though whether or not an employer chooses to offer it is a personal choice for each employer. Consistency of policy is important here, and if expenses are offered to some home-based employees but not others, the potential for claims against the employer arises. If expenses are going to be offered, what type of expense? Mileage? Train fairs? Taxis? What about parking? Other common homeworking related allowances include claims for proportions of utility bills and office equipment. This should all be laid out in the form of an expenses policy, and these may need to be revisited where homeworking will be more common.
If the employer chooses not to offer expenses, employees may still claim tax allowances from HMRC – https://www.gov.uk/tax-relief-for-employees/working-at-home.
What about last-minute changes to homeworking to accommodate work priorities?
Employers will want to make clear that homeworking should not come at the expense of flexibility, for example in terms of being able to attend the office for unexpected work priorities. “But that’s my homeworking day,” should not be an excuse if the employee is required at an important client meeting.
However, where an employer allows homeworking for, say, 2 fixed days per week, some employees will arrange their childcare accordingly, and that will mean they will have more difficulty being flexible. Many childcare arrangements cannot be changed at short notice, or there may be a cost to the employee for doing so. Some employers may wish to compensate employees for this, but if it is likely to be a frequent occurrence those costs could mount up.
This aspect should be openly considered by the employer and employee at the outset. In some organisations last minute changes to plans entailing face to face meetings at short notice will be rare, but where more likely, the employee’s ability to respond is a valid consideration and, in some circumstances, could be the difference between approving home working, or not. Employers should take advice in these circumstances, as there is a potential for sex discrimination claims in circumstances where homeworking is refused without clear justification.
Employers may cover these issues in a homeworking suitability and risk assessment, prior to granting ongoing homeworking. An alternative would be to allow a trial period, covered by a temporary variation of terms letter. The letter should make clear the trial duration, and how it may be ended with reasonable notice, if it’s clear the trial isn’t working.
A word of warning – refusing a request for regular homeworking because a mother has no other last-minute access to childcare, could amount to sex discrimination. Any homeworking suitability assessment should be used to explore levels of flexibility, in full consultation with the employee. Consideration should be given to whether it is possible to live with less flexibility from employees with young children and no last-minute care availability, if other employees might be able to step in. An outright refusal to grant homeworking in the absence of a thorough assessment could land the employer in very hot water.
Changes to terms
Changes to start & finish times for returning employees
Just because we all started at 9 and ended at 5.30 before the pandemic, doesn’t mean we have to go back to this. While some level of infection risk remains, employers may consider staggering start and finish times, particularly for those who have to use public transport. This doesn’t have to be a permanent change, a temporary variation of terms will do, and myHRdept regularly draft these for clients. If it transpires that staggered start times work well and are popular with employees, why not make it a permanent change? Staggered start times reduce commuter traffic (and pollution) and will allow some staff to do the morning school run. At myHRdept we’re finding that employers prepared to tailor working practices to individual employee needs are better able to recruit qualified staff.
Providing a safe workplace
The UK government has published useful guidance for employers in various industry sectors to provide a safe working environment: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.
Contract changes to allow homeworking
Contracts should be amended to reflect new homeworking arrangements, to highlight key issues and draw employee’s attention to the homeworking policy, and risk/suitability assessment. Employers may consider a temporary variation to terms to trial homeworking, but employers should be sensible about using ‘trials,’ when many employees will have worked at home for an extended period already during the pandemic.
Cultural issues & flexible working
Before March 2020 myHRdept operated from offices in Bray. By March 2021 all of our staff will have been homeworking for a year, and 3 new team members joined us over that period. Like it or not, we have changed, probably forever.
Staff returning to the office for the first time in a long time, or the first time for new starters, may have some anxieties, and relationships will need to form and reform. It will be important in the early weeks for leaders to monitor progress, and ensure that staff, old and new, are settling back into the old ‘new normal’. Leaders should be prepared to acknowledge that it’ll take time to settle back in, and let staff know that doors are open for anyone who needs to talk.
Leadership teams should be clear though, before committing to individual changes to terms of employment, about what the organisation is prepared to accept moving forwards. Will homeworking be permitted for all? If so, will that be for a maximum number of days per week, or month….and how many days? Under what circumstances might exceptions to the rule be allowed, and what will be the process for approving these? Will employees need to arrange GP appointments etc. on home-working days where possible? And what if we need someone to attend the office on a homeworking day?
Leaders should be clear about new permitted working patterns before entering into one-to-one discussions with staff to discuss their requested changes. Employers are not required to blindly accept requests for changes to terms, but they should carefully consider them, as all employees with more than 26 weeks’ service have the legal right to request flexible working. Flexible working requests normally concern hours, days and/or location of work. We predict there will be a flood of requests to work from home, for at least part of the week. Statute requires employers to consider requests fully, to follow a fair process in doing so, and to allow employees to appeal against an initial refusal.
Breaking bad habits
Over lockdown employees may have become used to bending some rules, e.g. on homeworking without having childcare arrangements in place. Rules should be gently, but clearly re-stated to avoid unwanted practices becoming the norm. This should form part of a ‘return to work’ briefing, but a summary email or letter will do no harm in reinforcing the message.
Research suggests that sleeping habits have changed, and some staff may find it difficult to readjust. Most employers will be used to particular employees arriving to work ‘just in time,’ or to put it another way, ‘almost late.’ A word in the ear is normally all that’s needed.
Lockdown was thrust upon us – we had no time to prepare, but the end of lockdown is something employers can, and should prepare for.
This paper is an updated version of an original post by Jessica Whelan, HR Operations Director of myHRdept. myHRdept are a provider of outsourced HR solutions for employers, they also provide support to HR teams. If you thought this paper was useful, and you would like a copy of our guide for medium sized SMEs to outsourcing HR, please contact firstname.lastname@example.org. The paper contains 3 active case studies of employers with 100 – 500 staff, who have chosen to fully or partially outsource their HR.
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