Remote working was originally hailed as a temporary solution during COVID-19, but as it becomes permanent many employers must understand working from home contracts & clauses.
There is a reason why contracts or terms and conditions are known as the small print – a smaller font takes up less space and is easier to scroll through!
No one really wants to read through an extended contract, and this can be dangerous.
An irreverent survey by the website ProPrivacy.com left some unusual items in the small print of a document sent to survey recipients. The result was that 99% of respondents unwittingly agreed to conditions such as giving up naming rights to their firstborn child, allowing access to the airspace above their property for purposes of drone traffic, and inviting a personal FBI agent to Christmas dinner for the next 10 years!
Fortunately, none of these conditions were binding, but an employment contract is another matter entirely, and it is a very important document. Employment contracts are essential for both staff and employers, legally establishing the working relationship and setting out important frameworks and policies.
A breach of contract can be very serious. For an employee it can mean dismissal. For an employer it can mean being taken to a tribunal. Contract breaches on either side can result in legal recourse.
Understandably, a lot of thought goes into drafting a contract, but what happens when circumstances change in an unexpected way? At the start of 2020, no-one could have imagined a situation when millions would find themselves suddenly working from home. Yet, this is what happened. The likelihood is that few companies had a ready-made home working contract clause.
Do you need working from home contracts & clauses?
Although organisations had a reasonable excuse for not updating contracts in time for the rush to home working last Spring, an argument citing lack of time no longer applies. With hybrid or home working now becoming commonplace, contracts need to reflect the new ways of working.
There is a good chance that a standard employment contract will not cover home or hybrid working.
So how do contracts need to change and where do working from home clauses in employment contracts need to be added?
The sections of the contract most like to be affected are listed below:
The right to work from home
Firstly and fundamentally, there should be a clause that defines the home working arrangement. This is important for clarity in respect of both parties.
Guidelines from Unison state that an employee would be classified as a regular homeworker when they spend 50% of their contracted hours working from home. The contract should ideally define the parameters for home working, although there may be a preference for a loosely worded clause, such as home working being permitted at the discretion of the line manager.
The contract should affirm that both employer and employee have the right to terminate the home working arrangement at any time.
For instance, Unison suggests a clause such as:
“Agreed home working arrangements are reviewed regularly and can be withdrawn if it is demonstrated that:
- The performance of an employee suffers as a result of home working;
- The effectiveness of the team in which the employee works is compromised; the business needs are not being met.”
A trial period can be specified, for instance, a clause can specify that a home working arrangement will be reviewed after three months.
Place of work / where the employee is based
A standard employment contract will specify the employee’s place or places of work and any relocation provisions.
The contract may need to be updated if the normal place of work will become the employee’s home. A straightforward amendment will simply comprise of adding a clause stating that the home address is named as a place of work, in addition to the office or usual workplace.
The new clause may be added by writing a variation of contract letter, which the employee needs to agree to and countersign to confirm their agreement.
Hours of work
Homeworkers are covered by the Working Time Regulations, which set a limit of 48 hours on the working week. There is also a requirement to take breaks. So, there should be no change to the existing contract in this respect.
However, many homeworkers will work flexible hours (e.g. childcare may be the reason why they requested home working), so there may be a need to outline the core hours when the employee will be working.
An employee working from home will incur expenses. They may be using their internet and phone for work purposes. They will need light and heat in their home when working. The contract should clearly outline what the employee can and cannot claim for.
Provision of equipment
Will the company be providing a workstation/desk and an ergonomic chair? What computers will be provided? Will broadband be upgraded?
The business needs to define which equipment is provided, and also how it is to be used. The equipment remains the company’s property, so what is the policy on using the computer for private purposes? Such questions need to be considered and incorporated into the contract.
It is advisable for work to be saved directly onto the employer’s system, maybe using a secure virtual private network (VPN). The company should implement data security measures, such as firewalls and anti-virus software.
The employee has a duty to adhere to the security policies which keeps the company’s data safe.
Security policies will likely already be on the existing contract – but make sure you check!
Not everyone copes well with working from home. Away from the office, people can feel isolated or anxious. Employers have a duty of care to all their employees regardless of where an employee is based.
The employer should have a homeworking policy in place to help people adapt. An effective way of monitoring the mental health and concerns of home workers is to conduct regular employee surveys. It may be worth considering adding a requirement to take part in such surveys as a working from home contract clause.
Office health and safety requirements also apply to employees who work from home. It is therefore important that initial risk assessments are performed. It may be that the home worker does this themselves, in which case, they will need advice and guidance. Online ergonomic assessments are available.
The assessment should include ensuring the seating and workstation are set up correctly, testing electrical equipment and ensuring there is adequate ventilation. This assessment may be required to validate the employer’s liability insurance.
The contract should include health and safety policies for home workers.
Do you want the right to enter an employee’s home? Why would you want to do so? For instance, you may need to install, maintain, or even retrieve company owned equipment. You may want to do a risk assessment. Or maybe the employee’s manager will need to do regular performance or health reviews.
If so, you should add a clause to this effect. You may want to specify how home visits would be organised, e.g. giving a week’s notice in writing. Employees should have the right to safeguard against unexpected, impromptu visits to their home.
Contract clauses – the process
A contract cannot be changed without consulting the employee first. Imposing changes without consultation could mean a claim by employees for damages in a civil court, industrial tribunal, or a constructive dismissal claim.
Adding clauses to allow homeworking shouldn’t be contentious, so the best way to proceed is to talk to your employees and explain the changes. They have the right to challenge the changes, so there may be the need to negotiate.
Any agreed changes to the contract should be confirmed in writing and kept on file.
Amending contracts can be time-consuming, but it is essential to ensure they are up to date and fit for purpose. They are there to protect all parties.
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