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Post-Lockdown Working, Part 5 – Doing your Homework (UK)

The logical extension from the discovery that all or most or your staff can work from home without anything catastrophic happening is to ask yourself whether you actually need an office in the first place.  Obviously it has potential advantages in terms of staff cohesion and corporate identity, but decisions are being made across the country right now about whether full-size physical offices are worth the cost.  An increasing number of employers are making homeworking for those staff not just an option but compulsory, a whole new way of working.  If this is or might be you, what are the employment considerations?

  1. This is a material change to the employee’s contract of employment, not guaranteed to be agreed.  The current workplace may represent a refuge from family, dogs or cramped conditions, and kitchen furniture is a poor substitute for a proper desk and chair.  Therefore requiring someone to be permanently at home may be condemning them to work in conditions significantly less suitable professionally and less congenial personally than their contract provides for.  That they may just about have got by during the lockdown when they had no choice is relevant but in no sense determinative of their ability, let alone willingness, to WFH on an ongoing basis.  An employee’s refusal to do so is in no sense necessarily unreasonable.

  2. Refusal or inability to work from home when there is no office (or no space in it) will almost inevitably lead to a termination of employment.  That will probably be by reason of redundancy, in that your need for employees to do what they were employed to do in the place they were employed to do it (the office) will have ceased or diminished.  Redundancy dismissals will trigger entitlements to statutory and potentially enhanced redundancy pay, and (if material numbers of people are affected) to collective consultation and protective award obligations.

  3. Once WFH is both permanent and at the employer’s instigation (i.e. not a short term emergency measure imposed by external factors) then it is appropriate to take a more searching look at the health and healthy aspects of that arrangement.  Though the duty in section 2(2)(d) HSWA to maintain the workplace in a condition that is safe and so far as practicable without risks to health applies only to premises under the employer’s control, the employer’s overriding obligation to provide a safe system of work is not removed or reduced by the employee’s WFH.  That duty includes the provision of safe plant and systems; information, instruction and training; and a working environment for its employees that is “adequate as regards facilities and arrangements for their welfare at work“.

  4. Quite aside from the law, what about retention?  Those with big houses and established roles may not lose out from WFH, but younger employees denied the developmental benefits of actually watching senior people in action, casually bouncing ideas off others and just being physically seen by their seniors as keen and available may well consider this cause to look around for somewhere which does provide those opportunities.  That is particularly the case if there is no sign that any of the corporate savings made will be passed onto the employees whose dislocation is making them.  WFH gives people more time to think about whether they are doing the right thing career-wise being with your business and can significantly increase the chances of their deciding that they are not.

  5. Do keep an eye on the tax consequences of expenses of this sort which you incur in setting up your employees at home.  Both parties really need to understand these as part of an agreement to the contract change.  HMRC introduced a temporary variation allowing for favourable tax treatment for certain expenses incurred to permit a homeworking necessitated by COVID-19, but where WFH is at the requirement of the employer and not government guidance, we are back to the ordinary rules.  Summarised, the HMRC rules say that you can provide your employees with kit or services for their WFH without that being a taxable benefit provided that:

    • any private use of it is to be insignificant (and you tell them as much, ideally in writing, though I am not quite sure how that would work in relation to your new chair – “not to be sat on in your own time” just sounds weird); and

    • they need it to perform their duties; and

    • it does not include paying for your employee to extend his house, build an office in the garden or other possible work must-haves like “boats or aircraft“, however much he says he wants one.

    Where WFH is consistent or regular you can also reimburse tax free those expenses connected with the day to day running of the employee’s home which are increased as a result of his carrying out duties at home.  These will include increased power or insurance costs, for example, but not any part of outlay he would have incurred anyway, such as mortgage/rent or pre-existing broadband expenses.

  6. So last, to what seems to be the key flash-point around this – who pays for that new ergonomic chair?  The obvious answer if you are closing the office is just to let your employees take theirs home, but otherwise it seems fairly clear that the liability is on the employer.  The risks of muscular/spinal/skeletal injury associated with extended periods in inadequate seating are so well known that it would be impossible for the employer to argue that such injuries were not reasonably foreseeable in the longer term if proper chairs were not provided – as such, not providing/paying for one is at least arguably not providing a safe system of work.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 210

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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