Previous Article Next Article An increasing number of employees work from home, at least for some of thetime. But out of sight must not mean out of mind, warns Sean Nesbitt. There arestill many legal and practical issues to considerAlthough often described as atypical, homeworking is an established andgrowing component of many employees’ working arrangements. In July 1999 areport indicated that one in 20 of the UK workforce now works from home atleast one day a week. This form of flexible working is especially widespread in technology-basedservices, such as call centres, as well as in the dotcom world. Reports alsoindicate that more established professions such as law have significant numbersof employees working from home, at least part time. Homeworking frequently strikes a chord for those reviewing working practicesbecause it may assist in meeting a traditional management target – driving downcosts – as well as in the search for the modern Holy Grail, the work-lifebalance. For employers, overheads may be reduced and homeworking may also sitwell with flexible working practices, enabling employees more easily to fulfilcaring duties. The duties of homeworkers, and the forms which homeworking may take, arediverse. However, homeworking carries with it certain core issues that need tobe considered at the start of the relationship and addressed in managementpractice and employee contracts. Homeworking also acts as a magnifying glass for issues which may be relevantto all employment, but have particular difficulties for the employer when theyarise during this kind of employment relationship. Health and safety Under the Health and Safety at Work Act 1974 employers have a statutory dutyto provide a safe system of work for their staff. Failure to comply may result in criminal proceedings, not justagainst the employing entity but against directors or managers who arecomplicit in a default. It is also an implied term in every contract of employment that the employerwill take such steps as are necessary to provide a safe system of work, andfailure may expose the employer to proceedings in negligence (for example, forstress as well as for conventional physical injuries). Subsidiary legislation, primarily in the form of the Management of Healthand Safety at Work Regulations 1992 and the Display Screen EquipmentRegulations 1992, set out more detailed practical obligations on employers.Under the former, employers should carry out a risk assessment of the workingenvironment and methods of homeworkers, as they should for staff who work ontheir own premises. Ideally, employers should send a staff member to visit the premises ahomeworker would occupy, in the same way that a risk assessment would becarried out at the conventional workplace, looking at any obvious hazards. However, as the HSE guidance notes, homeworkers can also help in identifyingthe hazards for their employers. Many employers will wish to carry out a screening exercise, at least as thefirst step, involving the employee completing a questionnaire detailingphysical working methods, who else is in the home and provisions for securityand rest breaks. According to their resources, where hazards or risks are identified,employers would then respond with visits to examine the issue further andassistance with corrective action (including, for example, provision of fireequipment, an appropriate desk or work station, and so on). It may be appropriate for employers to provide employees with guidelines ontheir conduct while working at home. While the essence of homeworking is todevolve responsibility and a degree of control to the worker, employers cannot evadethis statutory duty and the drafting of clear and specific guidelines relatingto the activities to be carried out should not only improve the quality of workand productivity, but also reduce the chance of legal action if things do gowrong. Employers should consider adapting existing handbooks on employee policy tocontain specific provision for homeworkers. These guidelines should include,for those working with VDUs, specific provisions which will be familiar in themore conventional administrative environment of many offices such as: – A reminder that workers should take breaks on a regular basis, including adescription of any necessary stretching exercises. – A reminder about setting up lighting so that glare is reduced. – A reminder about regular eye testing, which many companies will pay for,together with appropriate spectacles if required as a result of VDU use. In order to reduce risks on a cost-effective and consistent basis, largeremployers may provide homeworkers with a uniform style of workstation andkeyboard/screen equipment. But all employers should, as a minimum, consider a specific written documenthighlighting risk areas for staff and practical working measures as to how toreduce them. This applies both to physical risk and to working practices. Staff should beable to shut out the domestic environment, but not so that they becomeoverworked or stressed without appropriate breaks and without colleagues aroundthem with whom they can relax. Third party notification/consent Where equipment such as computers, an ISDN line, telephones or answeringmachines are provided, these are unlikely to be treated as taxable benefits tothe employee. Strictly, section 155(2) of the Income and Corporation Taxes Act 1998provides an exclusion for PAYE on non cash benefits and expense allowanceswhich relate to the provision by the employer of workplace facilities inpremises occupied by the employer. There may be some doubt as to whether thisincludes a part of a worker’s home. Employers may insist that certain equipment is provided for businesspurposes only. However, there is a growing realism about the difficulties ofpolicing this division, manifested in the recent abolition of tax on mobiletelephones where employees use them for personal purposes. In practice,employers should discuss with the Inland Revenue what is to be provided andobtain clearance as to the appropriate tax treatment, confirming this to theemployee at the start of the homeworking relationship. Other third parties who should be consulted or informed about therelationship include mortgagees or landlords. There may be restrictivecovenants or terms in lending documentation which prevent particular uses for ahome. Again, in order to reduce the risk of the employee infringing his or herpersonal obligations, many employers will adopt as a term of their homeworkingpolicy a requirement for the employee to check for the need for third partyconsents and for the obtaining of those consents as a condition of the relationshipcontinuing. Employers may wish to draft appropriate notifications for theiremployees to use. Employers should also check with their insurers that the terms of any oftheir insurance policies apply. It is surprising how frequently copies of theinsurance policy are not readily available to the employer or the policy issignificantly outdated. Where valuable equipment is to be provided for the employee to use at home,it may be possible to devolve to the employee responsibility for maintainingadequate insurance cover for the risk of loss or damage to the equipment.General legal issues Given the duties relating to health and safety and other third party rightsreferred to above, an employer might consider it more appropriate to structurethe relationship as one of independent contractor. The provisions of theRegulations and HSWA do not apply to these forms of relationship, which may beadvantageous given the potential difficulties in carrying out risk assessments.However, where employers need to maintain the certainty and control thatcomes from the employment relationship, this will not be a viable option. Inthese cases it will be necessary to consider the following. The Working Time regulations These apply to homeworkers as well as other staff. The employer may need togive thought to ring fencing any period in which it would not wish homeworkersto take holiday, or ensure that it has sufficient flexibility and speed ofresponse that it can act quickly to defer holiday where business needs require,in accordance with the Regulations. Employers will also need to consider how they comply with the generalmonitoring and record-keeping obligations imposed by the Regulations. Inpractice, many employers find there is a danger of homeworkers overworking – inthis regard, regular time sheets, management monitoring and, where possible,monitoring technology such as the number of hours an employee has logged on toa network, may be valuable. Minimum Wage regulations There is a risk that with a flat-rate wage and autonomy as to hours worked,staff may end up with an hourly rate below the statutory minimum. Employers maywish to impose a maximum number of weekly hours to be worked commensurate witha flat rate of pay. Redundancies According to circumstances, employers may also need to consider the impactof other legislation including, in the case of collective redundancies, whetheran employee is to be treated as working at an “establishment” for thepurposes of triggering collective consultation under the Trade Union and LabourRelations (Consolidation) Act 1992. Depending on the composition of the homeworking force, there may also bepitfalls in the equal pay or sex discrimination legislation. Where homeworkersare part time, employers have to assess the impact of regulations under thePart Time Workers Directive (97/81/EC). Fixed-term contracts Homeworker policies will also need to be reviewed in the light of theframework agreement between the social partners on fixed term work (Directive99/70/EC). It is possible that where employers combine the flexibility of homeworkingarrangements with other working practices designed to reduce the impact ofstatutory rights, such as avoiding the accrual of continuous employment, thescope for loopholes will be reduced. Sean Nesbitt is a partner and London head of employment law at Garretts,a member firm of Andersen Legal Checklist: terms and conditions– Draft flexibility as to place of work, with employer rights to recallemployee to premises.– Draft flexibility as to hours/shifts.– Require employer access for risk assessments and property recovery.– Clarify/delegate responsibilities for insurance, notifying landlords, etc.– Clarify appropriate use of equipment for expenses/tax purposes.– Draft appropriate internet/e-mail policy.– Draft appropriate policies on data security, computer use and Data ProtectionActs 1984 and 1998 (especially where employee is using personal data relatingto others).– Draft protections on maximum working hours and record keeping.– Ensure compliance with equal pay and discrimination legislation.– Provide for return of equipment, refund of employer loans and so ontermination.Case study: The AAIn 1997, the AA began to explore homeworking to allow more flexibility forcoping with fluctuations in the volume of motorists’ calls. It now has about150 people working entirely from home. Work is identical to that in a callcentre. Staff wishing to telework have a home check to ensure adequate light,heating and electricity supply for the equipment and a comfortable environment.They are provided with special equipment, insured under the AA’s corporatepolicy, including a foldaway, lockable desk, chairs identical to those in thecall centre, fax, telephone and computer. All teleworkers undergo a workstationassessment of risk of RSI, eye strain and other health and safety problems. Home-based team managers manage up to 20 teleworkers each. They visit theirstaff twice a month and are in frequent telephone contact. They carry outcontinuous assessment of the teleworkers through on-the-spot monitoring,listening in to calls and taping calls. All teleworkers are asked to sign a special agreement, key features of whichinclude:– Requirement to work flexibly and change work patterns with notice.– Requirement to allow employer to undertake risk assessments and other healthand safety checks– Provision and use of equipment– Insurance responsibilities– Computer and data security-Home environment, covering potential disruption, care arrangements and so on– Expenses and tax implications– Training and supervision– Requirement and obligations where there is a change in personal circumstances– Requirements should they wish to stop teleworking– Requirements for access to home– Requirements regarding any contract termination– The AA managers in charge of the teleworking project give the following bestpractice tips.– Team managers should be used to avoid social isolation. – Professional equipment to be provided in an appropriate environment– Selection procedures at the start should identify those best suited to workfrom home.Source: Industrial Society Managing Best Practice No. 68: RemoteManagement Related posts:No related photos. When home is where the work isOn 1 Jun 2000 in Personnel Today Comments are closed.