Flexible working and legal questions
What do I need to know about Health and Safety?
You are still responsible for the health and safety of your staff whilst they are remote working at home or working on the move. Risk assessments should be carried out as normal for example on display screen equipment (DSE). Systems you may have for accident reporting, first aid, training, etc will still apply. Often a room in the home where telecommuting takes place is called the ‘place of work’.
This can help when looking at health and safety risks as well as things such as tax. It is worth noting that some businesses allow employees to carry out their own self assessments. Along with this is the simple further step of taking a photograph of the designated flexible working area to add to the self assessment information. However whatever method you use, remember you need to make sure risk assessments are kept up to date so you should make sure that these are done at least every year or earlier if there is any change in the home environment.
Are there any legal risks?
All your legal responsibilities in the workplace also apply in a home working environment. This will include Health & Safety, Data Protection and Discrimination (which now includes sex, race, age, disability, sexual orientation and religious belief).
Your employees are likely to be increasing productivity and enjoy a better work life balance. You need to make sure their flexible working arrangements comply with flexible working law.
What sorts of issues does the General Data Protection Regulation (GDPR) raise with flexible working?
The GDPR (which comes into force in the UK in May 2018) imposes several important principles on the processing and storage of personal information, irrespective of where this is carried out. So when working in the office or remote working, it is the same. However remote working may also present additional challenges! When working remotely you should review how you comply with the GDPR, in particular:
- Is the company aware that the data is ‘off-site’?
- Is the data secured against theft and from viewing by family members and visitors?
- How is data kept secure from ‘shoulder surfing’ if staff are working remotely and for example may be working sometimes in public places such as cafes.
- How is the data backed up? With superfast broadband, automatic online data back up is straightforward and low cost to implement.
- In practical terms you may wish to invest in lockable cabinets and shredders as well as review security on the location and equipment used including passwords on PC’s and Wireless networks.
If I allow staff to work from home, is the business legally liable if there is an accident or if an employee’s heath suffers as a result? Could the company be sued? How can I avoid any such risk?
Yes. The company has the same duty of care to the employee whether they are working on the company’s premises or remote working , including mobile working and working at home. All Health & Safety Executive (HSE) legislation for the workplace includes workplaces in the home.
A good starting point to manage such a risk is to ensure the employee completes the homeworking self assessment checklist (available in the Superfast Cornwall toolkit for employees) before they start home working with a review being done at 12 months or if there is a significant change that affects them.
You should also book time after one month to review any possible impact that working remotely has had on the health of your employee. This way you can identify any health and safety risks, carry out the appropriate risk assessment and take measures to minimise or alleviate the risk.
What do I need to do to comply with Health and Safety legislation? Do I need to check the working conditions at employees’ homes?
You need to consider the health and safety of your employee when they are flexible working from home as carefully as if they were working in the office;. All the same HSE legislation for the workplace applies equally to workplaces in the home.
So you need a risk assessment for remote working to be done. The basis of this can be a self assessment checklist to be completed by the employee. (This is available in the Superfast Cornwall toolkit for employees.)
If your businesses has a policy of PAT (Portable Appliance Testing) electrical equipment, you should have home working equipment similarly tested.
Will flexible working affect employee’s tax or insurance positions?
There are normally no tax implications for employees who are flexible working less than 50% of their time. If the employee is given equipment to work from home, say a laptop or tablet and this is also used for personal use this could incur a benefit in kind liability. As long as the equipment is only for business use, however, there is no liability.
There is also a potential Capital Gains liability upon sale of an employee’s home if they claim tax relief on the space at home designated as a home office.
Employees who work from home should inform their home insurer, especially if this means there is additional equipment of value kept in the home.
What is benefit-in-kind and what are the taxation implications?
When a benefit is given to an employee in lieu of money, it may be seen as a benefit-in-kind.
There may be benefit-in-kind’ tax and National Insurance implications if you provide expenses payments to your employee for certain items or provide other non-cash benefits unless, as HM Revenue & Customs phrases it, any private use is ‘not significant’. These can include things like a company car or private medical insurance, and depending on the level of private use could include providing a broadband or superfast broadband connection for home employees for flexible working.
Certain benefits, like using a company PC for personal use or childcare facilities, are exempt. Further guidance can be found on the HM Revenue & Customs site – is a good starting point.
Do I need to pay towards expenses like heating and lighting at the employees’ homes and if so, how much?
There is no legal requirement to pay towards an employee’s expenses when working from home. You may decide to do so but this may be liable to tax. For full or part-time home workers, however, the employer can pay a small reasonable amount tax free without the need for any supporting evidence of the additional costs.
Will I have to change employees’ contracts if they start flexible working?
A section one statement (a written statement of Terms and Conditions of employment – click here is a basic requirement but it does not take into consideration such things as internet and email policies and data protection security which you will need to consider. We recommend you get a detailed employment contract which is drafted by your solicitor or legal adviser which will take into account all the aspects of your business which protects your interests and limits your legal liability.
The example Flexible Working agreement in the toolkit should be seen as an aide memoire or checklist to cover certain issues that might arise when remote working. We recommend that you expand upon these issues where you feel it is necessary to ensure each party knows what is expected of them. Each business will have different requirements. Flexible working, works far more effectively where an employee is made aware of the extent of his or her responsibilities.
If I offer flexible working to some employees, do I have to offer it to all?
The short answer is no! However any employee who has been working for you continuously for 26 weeks or more has a right to make a flexible working request. The employer has a duty to consider these requests seriously. Note that these requests are usually based around a permanent change to working hours, so are not really ‘real’ flexible working which should be based on outputs and not ‘time served’.
There are a number of ways in which you can manage the rollout of flexible working. For example initially offering the opportunity to some employees only, or to employees in certain roles before opening flexible working up to everyone across your business.
Offering flexible working to employees in certain roles is a popular way of managing this. This means you can initially target the most appropriate roles, for example those with easily measurable outputs that need less on site presence.
Some of the staff who would like to work from home live in houses where there is no space for a desk. What are the health and safety implications if they use their kitchen table as a desk?
If the staff are using Display Screen Equipment (DSE) at the table for a significant period each day, then the HSE regulations regarding DSE will apply. A good reference point is the HSE website “Working with VDUs”. which has a section specifically covering the use of laptops. In short, use of a laptop on a sofa for prolonged periods is very unlikely to comply with DSE guidelines!
All material contained above is for information purposes only. Superfast Cornwall make no representations or warranties as to the accuracy and/or completeness of the material. The user is hereby placed on notice that they should take appropriate precautions to independently verify the material. Superfast Cornwall disclaims, to the furthest extent permitted by law, all liability for any direct or indirect loss or damage, howsoever caused, resulting from inaccuracies, errors, whether typographical or otherwise, omissions or out of date information.