As an employer what potential issues can I open myself up to when allowing my employees to work from home?

Employees working from home

There may be many reasons why an employee is required to work from home and following the introduction of the statutory right for employees to apply for flexible working many are taking the opportunity to apply to their employers to be able to work from home.

What potential issues are there if I let an employee work from home?

The potential issues which an employer may open themselves up to when allowing an employee to work from home are the following:

  • Issues with data and data protection

  • Health and safety issues

  • Working time regulations issues

Issues with data and data protection

All employers must adhere to the data protection principles contained within the Data Protection Act 1998 with the 7th principle of the requirement for appropriate technical and organisational measures are taken to protect data from unlawful loss or disclosure is particularly important when allowing employees to work from home.

Employer remains the data controller

As an employer will have had to make full disclosures to the Information Commissioner concerning the company’s use of data the employer will be the designated data controller. This applies irrespective as to whether the data is located on a computer in the office or in the home of the employee. If there was any breach of the security of this data in the employee’s home then the employer would still be liable as the data controller.

What should I do in this situation?

As the 7th Principle requires appropriate measures to be taken this could include a visit to the employee’s home by the employer to check the security of the data.

Furthermore the firewalls from the office should also be installed onto the computer in the home of the employee. However, a way to ensure this is that if an employee wishes to work from home you can ensure that they use a company laptop which has an internet connection to the same network used in the office.

Transferring of data

In some circumstances an employee may wish to transfer data from the office to their office back at home – this will pose no problem when the information is held in soft copy as a computer file. However, in certain circumstances an employee may wish to remove physical files from the office. If there is any personal information contained in this files these should be hidden form sight if the employee is traveling on public transport.

This point should be made to all company employees through the staff manual as any accidental disclosure of the information could be in breach of the Data Protection Act 1998 leaving the employer as data controller liable.

Sensitive Data

Sensitive data is under more strict control under the Data Protection Act than normal data – extreme care should be taken by an employer when staff is dealing with sensitive data ensuring that the provisions contained in the act are adhered to.

Health and Safety Issues

Employer’s duty of care

Under the Health and Safety laws of England and Wales an employer is under a duty of care to take reasonable care to ensure that his employees are not subjected to any unnecessary risks of injury.

Despite an employee being out of the control and supervision of their employer when working from home this duty will still extend to an employee working from home. Therefore an employer must undertake various tasks to ensure that the working environment at the home of the employee is the same in terms of health and safety to that enjoyed by all employees when at the office premises.

What things should I take into consideration when establishing an employees working environment at their home?

An employer should take into account the following considerations when establishing an equivalent working environment for an employee working from home:

  • If you provide your employee with a computer make sure it has a low radiation screen

  • If you provide your employee with a laptop to use you must ensure that you also provide them with an additional key board. Laptop keyboards are not specifically designed to be used for long periods of time as they are not placed in the ideal position

  • If you supply your employee with a computer it may be wise to supply them with a desktop to ensure that they are sitting in optimal position and you cannot have a claim against you for an injury suffered while hunched over a laptop. If you need to provide a laptop then you can provide an additional screen to be used when at home.

  • If would be wise for an employer to think about providing an adjustable chair to remove any potential back problems – just as these are provided for in the office

  • It may also be wise to provide a desk to you employee to ensure that when they are working they are at the optimum height to reduce any potential injury

  • An employer may also want to undertake a health and safety risk assessment of the working station in the employees home to ensure that there are no potential health and safety hazards

 Working Time Regulations

Under the Working Time Regulations the statutory maximum working week is 48 hours. This will however, be difficult to monitor when a specific employee is not in the office.

In order to avoid a claim under these regulations an employer should ensure that they appropriately draft clauses in the employment contract with that employee. For example a properly drafted opt out clause for the working time regulations would ensure that no claim could be brought. In the absence of an opt out clause it would be appropriate to put in place specific measures to ensure that the employee correctly records their working hours.

An employer should also ensure to remind an employee working from home about the need to take regular breaks.