The prime minister announced (22 September 2020) new restrictions to control coronavirus infection rates and urged office workers to " work from home if you can" and suggested that this measure could be in place for up to six months. This announcement will give pause for thought for employers. The limitations of an employer's usual contracts, policies and practices are now becoming increasingly evident.
While many businesses were in the process of gradually reopening their Covid-19-secure workplaces, others were biding their time and adopting a wait-and-see approach in terms of deciding what their future working arrangements may look like. At the same time, employees have been experimenting with working from a variety of locations, including overseas, with all the attendant immigration, tax and corporate risks for their employer.
Traditionally, the world of employment contracts has been stable – it has barely changed in the last 40 years – but now that is changing. It is clear that working from home and the opening and closing of workspaces will likely be a continuous measure until there have been significant advances in vaccine and treatment options. Therefore, businesses need to consider future proofing their contracts and employee arrangements – not just to incorporate the need for agile working but also to give flexibility in managing the workforce, at any given time, based on the effects of the pandemic. In addition, businesses need to get on top of their health-and-safety obligations and consider wider implications such as mental health and wellbeing.
Engagement, contracts and data
Positive employee engagement and agreement is vital in setting the tone when implementing change and ensuring continued success – and tools such as employee pulse surveys and discussion groups can give employers a head start.
Employers will need to consider what sort of working arrangement they want to implement for the near future and the degree of flexibility they wish to build in. The extent of changes to employment contracts, existing policies and procedures, and the formulation of an agile working policy will all need to be considered. In addition, wider changes – to be kept in reserve as responses to the pandemic – may also need to be incorporated: for example, amending holiday provisions to require employees to take holidays on short notice, revised sick-pay provisions, removal of overtime pay and the implementation of temporary short-time working or lay-off provisions during any renewed periods of furlough.
Enhanced safeguards to protect confidential information will be vital. In addition, competitors will be looking to shore up their business against the harm caused by the pandemic – and one action they may take is poaching employees of others. With a remote workforce, it will be difficult to pick up on the telltale signs of suspicious activity and an employee preparing to leave, therefore it is a timely opportunity to check the drafting of restrictive covenants and ensure that your business is protected.
There are also General Data Protection Regulation implications to consider, such as the data protection issues that arise from processing data at home and the monitoring of agile workers.
Health and safety
Employers need to give careful thought as to how they comply with their legal duties around the health and safety of agile workers, and how to enable workers to carry out their activities in a healthy, happy and productive manner. Factors to consider include the home workstation assessment, provision of work equipment and the training of employees and assessors in setting up workstations. In addition, the impact of lone working on stress and mental health also needs to be carefully monitored with interventions in place.
Tax and homeworking
Whenever an employer and employee consider moving to an employment model that involves an element of homeworking, both parties need to be clear about the financial and tax implications of the arrangement. Where expense payments or benefits in kind are provided to an employee, they are normally deemed to have been made by reason of employment and so are taxable. However, a number of complex exemptions can apply in the context of homeworking and so careful planning and consideration is needed.
Help with change
Osborne Clarke can provide structured step-by-step advice to assist you through this process. To find out more, click here, connect with your usual contact, or get in touch with one of our experts.