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 safety duties associated with homeworking;
  • Breaks;
  • Tax exempt expenses associated with working from home;
  • Insurance;
  • Disabled employees.

This is the sixth in a series to examine how the interplay between the workplace and the corona virus leads to novel problems for lawyers.

Health and safety

Employers must still prepare and revise risk assessments and provide safe systems of work and a safe working environment. Section 2 of the Health and Safety at Work etc. Act 1974 provides that employers must, inter alia:

  • Provide safe systems of work and working equipment;
  • Provide relevant information, instruction, supervision, and training;
  • Provide a safe working environment;
  • Make arrangements for workers’ welfare at work; and
  • Prepare and revise risk assessment(s).

Undertaking risk assessments of homeworking workers

The centrality of assessing risk was restated by the Supreme Court in Kennedy v Cordia [2016] UKSC 6 [89]. Assessing risk is all the more pressing where work is being undertaken in a novel manner.  To satisfy their obligation to prepare and revise risk assessments with a ‘work from home’ workforce, employers may:

  • Remind workers to take breaks as usual;
  • Remind workers to keep to ordinary working hours as far as is it is possible to do so;
  • Mitigate the impacts of workers being deprived of their ordinary or full work equipment;
  • Remind workers of the need for adequate light while working;
  • Take account of and mitigate risks posed by isolation, etc.

Employers with few workers may wish to consider conducting dynamic risk assessments via telephone to identify and mitigate risk.

We set out below principal areas of risk that employers (and employees) may wish to consider in relation to employees who are homeworking over the coming months.

Display Screen Equipment

Employers must manage the risks associated with using DSE on a long-term basis. During the lockdown it is not possible to undertake home workstation assessments for employees. However, it would be sensible for employers to ensure that staff have easy access to DSE polices and advice. The Health and Safety Executive (“HSE”) recommend that employees take simple steps themselves to mitigate the risks from display screen work:

  • breaking up long spells of DSE work with rest breaks (at least 5 minutes every hour) or change in activity;
  • avoiding awkward, static postures by regularly changing position;
  • getting up and moving or doing stretching exercises;
  • avoiding eye fatigue by changing focus or blinking from time to time.

It is advisable for employers to ensure that staff members are aware of such basic precautions.  A workstation checklist that workers might run through from home can be found on the HSE website. Thought should be given to encouraging workers to try ‘other ways of creating a comfortable working environment’ to replicate the effects of adjustable chairs and other pieces of office furniture. Greater movement and stretching may be needed if homeworkers cannot minimise the risks of prolonged use and awkward postures

If employers do recommend that employees have specialist equipment at home, they should ensure that any risks associated with the delivery of such equipment are assessed.

Welfare and mental health

Many workers now face the prospect of working from home, alone, and for a prolonged period. This may be coupled with feelings of anxiety caused by the pandemic and concern for ill friends and family members. Employers should take care that workers’ welfare is adequately supported at this time. Employers may wish to consider the following points:

  • do workers know who to contact should they require assistance?
  • are managers increasing the number of one-on-one meetings to monitor worker welfare?
  • are managers trained to recognize signs of stress and anxiety?
  • are employees being made aware of employee assistance programmes, including coping strategies and well-being, where available?
  • are colleagues able to contact each other?

It may be more difficult for employers to recognise signs of stress in workers who are not in the workplace over many months. Employers should seek to ensure that they pay careful attention to indicators of stress that are observable, for example, performance levels and the number of complaints and grievances in teams; and decreased motivation or changed emotional responses in individuals.

Being away from managers and colleagues may make it harder for workers to get proper support if they are suffering from stress or anxiety caused by isolation. Employers should consider how they might:

  • continue to effectively monitor their workers’ well-being without regular face to face contact;
  • ensure employees and workers have easy access to remote channels of communication; including clear instructions about how to contact managers remotely and when;
  • ensure employees are reminded of sources of support including Employee Assistance Programmes and mental health charities (bearing in mind that it may be more difficult for workers to contact their own GPs easily and quickly as the coronavirus outbreak puts greater stress on health providers);
  • provide opportunities for employees to interact remotely and to continue to develop collegiate professional relationships while they are homeworking. Employers may wish to consider the use of group video calls to bring team members together, for example;
  • mitigate sources of additional stress relating to remote working techniques, including by ensuring workers know how to use additional remote-access technology and that they are provided with appropriate guides to remote working platforms.

Employers should also ensure that their stress risk assessments are up to date. The HSE offer useful resources on communication and stress management. The charity Mind has a useful resource on wellbeing and the coronavirus.

Accidents at home

Homeworking (it is hoped) will be low risk for the vast majority of employees. Nevertheless, some serious accidents or injuries at work should be reported to employers wherever they occur. It is therefore strongly advisable that employers establish procedures permitting homeworkers to report accidents when working from home. See the employers’ duties under Regulations 4, 7 and 12 of the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013/1471 for further details.

Employers’ duties under regulations 3 and 4 of the Health and Safety (First-Aid) Regulations 1981/917 persist notwithstanding that employees are working from home. In particular, employers should ensure that employees have adequate and appropriate provision of equipment and facilities at home if they become injured while at work at home; and inform employees of arrangements that the employer have made in connection with the provision of first aid. They should also 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 are working from their own home, it is likely that the risk of injury while at work, rather than doing non-work daily activities such as cooking,will be low. In those circumstances it is likely that access to a simple first aid kit, or its component parts, will suffice.  Employers should also provide home workers with access to “emergency procedures”, that should “also include appropriate guidance on how and when lone workers can contact their employer”.

Breaks

It is unlikely that employers will be able to monitor easily how, when and whether homeworking employees are taking breaks. It is therefore vital that the limits of working time are established by employers. They should establish whether homeworkers will observe strict office hours or, alternatively, specify “core hours” when employees and workers are expected to be available for work.  Employers should also be conscious that some diligent employees left to their own devices may begin to work over their contractual hours. In such circumstances there is some (albeit perhaps a small) risk that some employees, especially those seeking to prove their worth in difficult times, might work in excess of the maximum weekly working hours and minimum work breaks set down in the Working Time Regulations 1998 (SI 1998/1833).  Employers should ensure they make it very clear that homeworkers are responsible for regulating their own working time and taking breaks as appropriate. It may be sensible to make contractual changes to that effect if employers foresee that working from home may be prevalent for their business for the foreseeable future.

Anecdotal evidence suggests that employees who would normally be office based but who are now home working are nevertheless visiting office premises from time to time to collect documents or equipment required for work, or to monitor the premises. The matter of whether a homeworker is entitled to claim travel time for occasional business premises visits as working time has not fallen under judicial consideration. Where such travel associated time is required by employers it may well be that it falls within the definition of “any period during which [a worker] is working, at [the worker’s] employer’s disposal and carrying out [the worker’s] activity or duties” in Regulation 2 (1).

Taxation

Employees may need to purchase additional equipment to work from home properly for a long period. Working from home may cause additional household expenses. Employers can make tax free payments to employees for certain costs associated with homeworking in certain circumstances. It is advisable to let employees know that there may be such tax implications to do with homeworking. The rules about tax free expenses are complex and extensive; the following provisions that are likely to be particularly useful are set out in outline below.

Expenses associated with supplies and services

Under section 316 Income Tax (Earnings and Pensions) Act 2003 (ITEPA) some expenses that an employer incurs in providing employees with supplies and services which they use to work from home are free of income tax. To be eligible the supplies or services must have the sole purpose of enabling the employee to perform the duties of their employment; and be services or supplies that the employee uses to perform the duties of employment. The tax exemption will not apply if the employer has a mixed motive (i.e. partly for private use). 

HMRC’s guidance suggests that ‘it is highly unlikely that any private use’ made of computer devices and equipment to employees for work purposes ‘will be significant when compared with the business need for providing the computer in the first place. In these circumstances section 316 ITEPA will apply and no tax charge will arise’. The exemption may also include stationary and normal office or workshop materials and supplies; and internet connection, mobile phones, and telephone lines in certain circumstances.

Additional household expenses

Employers may make payments free from income tax or national insurance contributions to employees for additional household expenses under section 316A Income Tax (earnings and pensions) Act 2003 (ITEPA). Employees qualify for a tax deduction against costs that have actually been reimbursed by their employer where they:

  • incur reasonable additional household expenses;
  • in carrying out their employment duties at home;
  • under homeworking arrangements.

HMRC expects employers to keep records to show how the payments have been computed. This may depend on retaining evidence provided by employees about the amount of the additional costs. Actual reimbursed expenses generally fall to be treated as earnings for tax purposes (see ss. 70 to 72 ITEPA).  Note that reimbursed expenses will not be exempt from tax if the expenses are subject to a salary sacrifice scheme.

Where it is difficult to calculate the exact amount of additional household costs, employers should calculate payments to meet reasonable additional household expenses. Note that employers can agree to a payment of £4 per week or £18 per month to an employee working regularly at home, without the employer having to justify the amount paid. HMRC would expect that £4 per week would be sufficient for most cases where the additional costs are only for heating and lighting the work area. Employers must ensure an appropriate system is in place for checking that employees are incurring expenses and that the expense would be tax deductible. In addition, the employer 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 be tax deductible: see section 289A(2)-(6), ITEPA.

PAYE is not applied to exempt expenses and the payment is not reported to HMRC by the employer (on form P11D).

Insurance

Some employees will have particular conditions in mortgage agreements and tenancy agreements prohibiting them from using their accommodation for business purposes without prior permission. It is important that employees check the terms of their lease or mortgage agreements for this eventuality; and, if it exists, to inform their landlord or mortgage provider of their intent to work from home and to confirm that they are authorised to do so.

Employees should also try and obtain from their home insurer confirmation of cover should work equipment cause damage and for a claim from a third party. ACAS advises that the employer should say if it will pay the extra if the employee’s premium rises as a result. Work property and a claim by a third party should be covered by the employer’s insurance policy, but employers should confirm this with their own insurers.

Disabled employees

It is important that any adjustments made for disabled employees and workers at work to enable them to carry out their job effectively are also made so far as possible in a home environment to facilitate their effective working. There may be other employees who have not declared disabilities but who may nevertheless struggle with working at home; particularly those who suffer from mental health conditions amounting to disabilities. Employers should, of course, consider the needs of workers and employees on an individual basis; nevertheless we hope the following general guidance will assist employers:

  • Don’t make assumptions – talk to the employee about what they have at home, and what they might need.
  • If there is particular office equipment at work which an individual might need, such as a supportive chair, consider whether the equipment can be delivered to their home.
  • If an employee has non physical adjustments, for example, to their hours, ensure that these continue at home.
  • A standing desk might help with back and muscular skeletal issues when people are likely to be at their desks for long periods, if feasible.
  • Encourage employees to have Apps that ensure they take regular breaks.
  • If relevant adjustments cannot all be made, there may be a consequential impact on an individual’s performance. Make sure that allowances are made for this.
  • More communication is likely to be done on remote networking platforms (Zoom, Microsoft Teams etc.). Consider whether those platforms are accessible to disabled people. Make sure the technology you use is accessible to visually impaired people using a screen reader and that those with hearing impairments can access any meetings.
  • Those who are neurodiverse may find some methods of communication more difficult to deal with in new ways of working – ensure that there are user guides available and training for them if required.
  • Access to Work remains 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.

2 April 2020

Tom Gillie, Ruaraidh Fitzpatrick and Catherine Casserley

Cloisters

Other blogs in this series are available here:

Covid-19: Critical workers refusing work – What if everyone is being reasonable?   Schona Jolly QC 26 March 2020
Covid-19: Pay for working parents forced to look after their children Rachel Crasnow QC 27 March 2020
Covid-19: Furlough and job retention: Key issues for Employment Lawyers   Daniel Dyal 30 March 2020
Covid-19:  Is Facial Recognition Technology in the workspace the answer to social distancing or discriminatory? Robin Allen QC and Dee Masters 31 March 2020
Covid-19: Legal implications of identifying immune workers Rachel Crasnow QC 1 April 2020