“Like many companies we are encountering new challenges with working from home. Recently, one of our employees has been smoking on-camera during work video calls. He has been told to stop but says that he can smoke if he wants to within his own home. We don’t want this behaviour to escalate – how do we handle it?”

The pandemic has undoubtedly thrown up new challenges for employers in maintaining their conduct standards and other policies, with some employees becoming too used to home comforts.

Firstly, for obvious reasons your pre-pandemic policy on smoking in the workplace is unlikely to apply, as it deals with smoking in an office environment and not the home. Secondly, the employee is quite right that, generally speaking, an employer cannot regulate what an employee does within their home.

However, there is an important caveat to make that, when an employee is working from home, certain instructions given by their employer around their conduct might constitute a “reasonable work instruction” which the employee must follow. For example, you might require employees who work from home to sign into their devices at a particular time, work between particular times and so on, in the same way as you would in the office.

This general remit will extend to requiring employees to maintain expected levels of conduct and professionalism, and you could instruct employees not to smoke (or drink alcohol, gamble or indulge in any other vices they may be prone to) while attending video calls, whether internal or client facing. It might be prudent to introduce or encourage a “camera on” approach to monitor compliance. You may wish to arrange a call with this employee to advise him of the company’s requirements and follow that up in writing.

It would also be prudent to consider how your wider policies apply in the home working environment, and in particular your policies on data protection, use of company property and protection of confidential information and intellectual property. Remote working undoubtedly poses new problems for employers in these areas, as company property and proprietary information is no longer contained (at least physically) within the office.

Where employees fail to comply with a reasonable work instruction, this can be dealt with under your usual disciplinary procedure, and you would be expected to carry out an appropriate investigation, hold a disciplinary hearing, give an outcome and offer the right to appeal, in the normal way. Meetings can be held remotely if this approach is preferred or if your office remains closed.

The main risk is that an employee could argue that a work instruction is not reasonable, or even that it is discriminatory or breaches the implied duty of trust and confidence. This could result in an internal grievance or in serious cases, a Tribunal claim for constructive unfair dismissal and/or discrimination. Given this, you should ensure that measures you take to maintain employee conduct and adherence with your policies while working from home are reasonable, proportionate and applied consistently and fairly.