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CONTRACTS, POLICIES & PROCEDURES – Watershed – – Print – Issue 210 – April 2022 | Article of the Week

NICK BENTON, EMPLOYMENT LAW EXPERT & DIRECTOR - HOWES PERCIVAL
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HYBRID WORKING ACCELERATED FROM BLUEPRINT TO REALITY AND ALTHOUGH IT PROVED TO BE GENERALLY OF MUTUAL BENEFIT TO BOTH EMPLOYEES AND EMPLOYERS, EMPLOYMENT CONTRACTS, POLICIES AND PROCEDURES DESIGNED FOR THE TRADITIONAL WORK SETTING, ARE NO LONGER FIT FOR PURPOSE. AS WE MOVE AHEAD, THIS COULD EXPOSE BUSINESSES TO SIGNIFICANT RISK.

Let us first look at how hybrid working could impact confidentiality. While most employment contracts include restrictions on the disclosure of confidential information, these may need broadening to encompass the realities. Employers should also ensure employees are required to keep confidential information and other data belonging to the employer secure. This will include requiring such things as; password encryption, disposal of confidential information and clean desk and screen procedures, all of which can be set out in a properly drafted hybrid working policy. Businesses should also consider whether an updated data privacy impact assessment is required.

Moving on to employee monitoring, one-in-five employers are already using, or planning to introduce, software to monitor employees who are working from home. There is a risk that excessive monitoring could constitute a breach of the implied duty of mutual trust and confidence and lead to constructive dismissal claims, amongst other issues. Employers are therefore advised to undertake an impact assessment prior to implementing monitoring, in order to consider whether any monitoring is permitted under Data Protection legislation and whether home workers are treated consistently with office workers. Next, health and safety is a vexing subject in the new hybrid set up, with vagaries and uncharted territory. Hybrid working models will necessitate a review of health and safety risk assessments, as existing ones will not reflect new home working environments and are therefore likely to be invalid. Similarly, health and safety policies will also need to be updated. Ensuring that such policies are accurately drafted will help employers to discharge their obligations, for instance by permitting remote or in person risk assessments of an employee’s home.

As for the Employment Contract, there is no alternative but to look at the brass tacks. The Employment Rights Act 1996 requires employers to provide employees with a written statement of particulars of employment outlining an employee’s place of work. While some contracts will have mobility clauses – a right requiring the employees to work from various locations – a move to hybrid working is unlikely to be covered by existing place of work clauses. Employers will therefore need to amend employees’ contracts to accurately reflect their place of work. Additionally, with the erosion of the nine-to-five framework, ensuring employees adhere to their contractual working hours is more difficult to police when employees work from home. The Working Time Regulations 1998 confirms employers must take all reasonable steps to ensure a worker’s average working time does not exceed 48 hours per week, unless a worker has opted out of this requirement. Even where there is an optout, employers will want to mitigate the risk of employee burnout and associated problems. Firms should, therefore, have mechanisms contained within their policies or contracts which confirm employees working from home are responsible for regulating their working time and taking the breaks required. If an employer fails to take reasonable steps to comply with the limits on working time, or fails to keep adequate records in this regard, they could be found guilty of a criminal offence.

FOR FURTHER INFO WWW.HOWESPERCIVAL.COM

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