Friday, 10 May 2019

Remote working: Are you compliant?

By Nigel Oseland

Flexible working has been practiced for many years and the right for employees to request flexible arrangements is now fully enshrined in UK statute law. One quarter of office workers now have some form of flexible working contract and 4.2 million people spend at least half their working time at home which suggests remote working is now the norm in the modern workplace.

Remote working is more than flexible working. It is a business solution incorporates technology and management style to offer choice of when and where work. Remote working comes under many guises which all have their own nuances. For example, it may be referred to as “new ways of working”, “agile working” or “activity based working”. Remote working may be defined as undertaking work activities away from the normal office base in locations such as client premises, in transit, at home and from third places, such as a coffee bar or library.

There are many proven benefits to remote working, for both the staff and organisation. Traditionally, the key driver is financial i.e. reducing space, property and infrastructure costs.  However, often bigger benefits come through increased empowerment of people to find their best way of working. This creates productivity gains, reduces travel time, decreases absenteeism and improves staff attraction & retention, by increasing diversity through trust and better work-life balance. Another benefit is improved organisational resilience.

However, with these benefits comes responsibilities. The Health and Safety at Work Act 1974 (HSWA) requires that employers offer “the provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work”. 

ACAS (2014) clarifies that whilst the health and safety of home workers is a little different to office-based staff, employers have a duty of care for all their employees, and the requirements of the Act apply to home and remote workers. As a minimum “the employer is responsible for carrying out a risk assessment to check whether the proposed home workplace's ventilation, temperature, lighting, space, chair, desk and computer, or any kind of workstation, and floor are suitable for the tasks the home worker will be carrying out”. It may be necessary for the employer to visit the homes of workers to carry out a risk assessment, but in most cases, it can be done with the co-operation of the home worker. Furthermore, the employer is responsible for all the equipment it supplies to its workers, regardless of the location. 

The duty of care of the employer extends to assessing suitability of the individual employee ensuring they have the necessary skills, skills, training, support and tools to work safely, securely and effectively in remote environments. This requires policies, guides and appropriate training for staff and their managers as well as audit trails and reviews to ensure ongoing competence, compliance and engagement. Employer ignorance and lack of structured support for remote working employees is no defence if problems arise.

One often-cited reason that organisations and managers ignore remote working health and safety responsibilities is the belief that as employees make the choice to occasionally work outside the office then health and safety is also their own responsibility. However, this is not strictly the case and a difficult interpretation to uphold in a court of law.

In fact, the legislation is clear and yet many organisations ignore or are oblivious to the health and safety requirements of their workers outside of the office. Whilst, there has not yet been any significant documented court case in which a remote worker has made a claim against their employer, there are several law firms offering “no-win no-fee” support for such claims and so it is surely just a matter of time.

However, it is not just the employer that has responsibility. The employee also has obligations to work within defined company and legal boundaries when working remotely and particularly in the home. For instance, they must rectify any flaws in the home highlighted by the mandatory risk assessment and, once the home has passed the assessment, they are responsible for its upkeep. Employees also have personal responsibility for any office equipment or furniture that they personally provide for working at home. Furthermore, there are implications for home insurance, planning permission and income tax.

Mobile communication is now common practice and can lead to "always on" cultures. Without establishing clear boundaries for employees, this can lead to wellbeing issues. Legislation regarding remote work is becoming more stringent in Europe. For example, in France companies are now obliged to agree that employee may switch off their mobile devices outside of normal work hours to reduce intrusion into their private lives. There is likely to be pressure for the UK to follow a similar path.

Nevertheless, it is clear that remote working is on the increase and, if done properly, it offers many benefits to the staff and business. But these benefits cannot be claimed without providing a safe and healthy environment for all employees. If you need further help to ensure you comply with legislation then contacts us for a consultation with one of our experts.

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