For June 2021, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive, or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I’m the HR Director at a large software company. Our Chief Operations Officer wants to implement a flexible remote working policy so employees can choose to work some or all of their hours in the office or at home. He has asked me to report on what the main human resources risks are. How do I handle it?

The pandemic has certainly led to many employers rethinking their approach to working from home and other flexible working measures. As life and the workplace return to normal over the coming months, employers who want to formalise these arrangements will need to make sure they meet their legal obligations.

As an employer you have a duty of care towards your employees, and still need to take reasonable steps to ensure the health and safety of employees who work from home. This will involve carrying out a risk assessment to identify and assess health and safety concerns and considering what mitigations you can put in place. Over the last year, commonly reported risks with working from home have included lack of supervision and support for junior employees and new starts, isolation, and mental health complaints, longer working hours and issues with unsuitable home workstations.

Your legal obligations regarding use of display screen equipment (such as laptops, phones etc) extends to home workers. You will need to carry out a DSE workstation assessment and take measures to ensure that employees take regular screen breaks. Your assessment should consider the employee’s overall workstation, including their furniture and equipment. You will need to take account of employees with additional needs due to a disability. There is no specific obligation to provide employees with resources to work from home (such as an office desk or chair), but you will need to ensure that all employees who you allow to work from home can do so safely.

This brings us to the employment contract. You will need to consider updating this to reflect your approach to flexible working. Aside from the obvious changes to the clauses dealing with the place and hours of work, you may need to include additional protections around confidential information, company property and data protection when working from home. You may also need to obtain the employee’s consent to home visits to carry out risk assessments and recover company property.

When updating your employment contract, it’s important to retain as much discretion as possible for you to bring remote employees back into the office when required, such as to attend meetings, client events or for particular tasks. You should also consider whether employees should be in the office during their probationary or training period.

You will also need to consider remote employees’ working time and adherence to your usual policies and procedures. You will need to set clear guidelines for employees on their working hours and that they should continue to take appropriate breaks; all employees who work for six hours of more will need to take a break for at least twenty uninterrupted minutes.  You will need to set clear expectations for employees on how they should treat company property, confidential information, and personal data while at home. This will involve implementing a home working policy which sets clear rules on how employees should secure their workstation, store documents and equipment, use personal devices and so on. You should also consider how you will monitor employee performance and conduct.

One common employee complaint during the pandemic has been an increase in “out of hours” calls and emails, and the perception that they are required to remain contactable outside of their working hours. This issue has been growing across Europe even pre-coronavirus, with France, Spain and Italy legislating for employees’ “right to disconnect” outside of work hours. The Irish Workplace Relations Commission has recently introduced a Code of Practice on the right to disconnect which whilst not legally binding, would be admissible as evidence in the courts or WRC.

The UK does not currently have any legislation in this area, and the government has faced calls to include appropriate measures in the Employment Bill set to be introduced in 2021. If a right to disconnect is included, it would not extend to employees in Northern Ireland without equivalent action from the Assembly. This is certainly an area to watch over the next year or two, as employment law begins to catch up with the growth in “agile” working arrangements.