The COVID-19 pandemic means that working from home has become the ‘new abnormal’ for many businesses and their employees – and is also likely to remain the case for the foreseeable future.
Research shows that 62% of employees would like to continue to work from home, with most favouring a hybrid arrangement of home with a day or two in the office.
Both employers and employees have had to be practical, flexible and sensitive to the respective needs of the other. However, employers and employees alike still have a duty of care and responsibilities to ensure safe working, productivity and compliance – in particular, in terms of maintaining confidentiality.
Maintaining confidentiality when working from home
Naturally, in employment contracts there will be express provisions seeking to protect confidential information both during employment and after an employee moves on. It is important that these are regularly reviewed so that they are specific to business need and the protection required, as companies will stand far better prospects of enforceability should court action ever be required.
In addition, depending upon the type of confidential information, employees will have implied duties of confidentiality, such as not to compete with the employer’s business and to act honestly. These obligations remain and they apply equally to remote working as they do to employees being based in an office or other premises.
It’s always preferable to rely upon express provisions set out in a contract of employment or company handbook rather than to rely solely upon implied terms. As an employer, you want to ensure that you maximise what can be said to be truly confidential information and the best way to do that is in the employment contract.
It’s timely to now review current employment contracts to check that the contractual provisions seeking to protect confidential information are up to date. As well as the express contractual provisions, employers should always look at what practical steps they can take to protect confidential information. This should also be complemented by your data protection obligations and in ensuring data security through home working arrangements.
Addressing the practical challenges of remote working
Employers need to consider the practicalities and challenges of their employees working from home, including how they can best support remote working and any specific needs of individual employees.
- Equipment and technology
• Consider what your employees need to work effectively and efficiently – this may have changed.
• Look into how easy it is to set up remotely.
• Remember that the equipment remains an employer’s responsibility.
- Check that IT systems are working as they should
• Ensure your IT systems can cope with the number of remote users and prolonged working from home arrangements.
• Check what IT support is available for home workers.
• Identify if you are able to make improvements / upgrades if required. g. dual screens.
- Setting expectations – set working time boundaries:
• Agree how work/life balance is to be managed, e.g. taking regular breaks and self-regulating their finish time.
• Set robust rules around storing information and data protection. Please see below for further detail.
• Consider how performance will be managed and measured – taking into account people’s circumstances where necessary.
• Outline who employees should contact if they have problems or circumstances change and how they will keep in touch.
• Discuss when employees will be available to work (this is especially important given some children are at home for periods of time). Requests may be made to work unconventional hours.
• Consider requests regarding working different hours, such as agreeing that employees may not be able to work a full day or a full week, reducing work targets and/or being flexible about deadlines where possible.
- Pay and terms and conditions of employment
• If employees are working usual hours then their usual pay and terms and conditions apply.
• Ensure staff follow the law on working time, e.g. rest breaks and average weekly working hours.
• Decide if employees can recoup costs incurred from having to work from home, e.g. extra phone or broadband charges.
• Update your expenses policy to reflect any changes.
- Health and safety
It is unlikely usual physical health and safety risk assessments can be carried out at an employee’s home, but checks should still be made that:
• Employees feel that the work they are doing at home can be undertaken safely.
• Employees have the right equipment to work safely.
• Managers keep in regular contact with their employees, including making sure they do not feel isolated.
• Reasonable adjustments are made for employees with disabilities.
• Employees are reminded that they have a responsibility to take reasonable care of their own health and safety. They must also advise managers about any health and safety risks or any home working arrangements that need to change.
• Employees need to look after their mental and physical health. Stress and anxiety levels during the pandemic will be high for all so remind employees to take care of their wellbeing by taking regular breaks and to do other things to stay mentally and physically active outside of their working hours.
- Data protection and confidentiality
To comply with the obligations under GDPR and DPA 2018, employers need to take appropriate measures against unauthorised or unlawful processing of personal data. Read more about the importance of data protection. A home working policy should cover this and the following aspects should be considered further:
• Employees should ensure that screens and documents at home should not be left “on show”.
• Employees should be reminded to store devices and documents safely, if possible in a locked room, to limit the risk of theft.
• In terms of confidential data, you should have rules about its retention. You may wish to consider providing shredding facilities or ask employees to use their own if they have any.
• You should be limiting the use of IT equipment to employees only.
• Ensure you are satisfied that the remote working systems allow encryption/password protection.
• Ensure that certain key information is only circulated to a limited number of employees.
• Make sure sensitive information is marked as "confidential".
• Provide confidential information in emails marked "confidential”. If the information is stored electronically, this can be achieved by password protecting the documents.
• Regularly monitor the use of email, and other devices. It may be necessary to implement a new monitoring procedure (or update an existing procedure) but ensure that employees' rights in relation to their personal data are respected.
• Ensure there are proper reporting procedures and regular communications, e.g. having regular virtual meetings with employees and with teams.
• Put in place effective confidentiality agreements, if necessary.
• Look out for odd or unusual behaviour, e.g. logging on at odd times (although with flexible working this may be harder to spot), telephoning the office and requesting secretaries or others to collate, scan and send over key business information or contacts, or information being emailed to a personal email account.
• Review whether all employees have received/do receive adequate training. Ensure their responsibilities are clearly outlined.
What if you do need to take action against an employee?
No employer wants to find themselves in a situation where this is necessary, but if it does come to this then there are certain things that can make your case more robust.
It’s going to be much more difficult to monitor behaviour remotely but it isn’t impossible. Having a system in place that includes effective communication, monitoring (without going too far as to impact upon personal data) and restricting who has access to confidential information will greatly assist. Whilst it won’t prevent someone taking your confidential information it will reduce the risk of it happening.
Having such a system will also strengthen any claim you may bring against the employee if you can demonstrate to a court that you had effective systems in place that made it clear to all employees the importance of keeping confidential information confidential and the consequences should those obligations be breached. A court will want to know what an employee was told about confidential information and how it would be handled.
Finally, ensure your disciplinary policies and procedures recognise a breach of confidentiality as a matter of gross misconduct. This will give employers the ability to take employees to task on such matters and with a potential outcome of summary dismissal, without notice, where confidentiality is breached and it can be shown that the employees were fully aware of the possible consequences of doing so.
Read more about how to handle employment disputes.
The importance of a home working policy
Given the fluctuating situation with COVID-19 restrictions it’s unlikely employers will be able to have all employees present in a workplace for a while yet, or will even want to going forward, and so home working will continue for many.
If not already in existence, employers should introduce a home working policy to provide guidance and support, not just for in the current climate, but also for the future as businesses adopt new ways of working. If home working policies are already in place, now is the time to review and update these where necessary.
Getting the practical aspects of home working right at the start will reap benefits in the long term for those employers who think through the implications carefully, to ensure that the approach works to the mutual benefit of employers and employees respectively.
Get in touch
To discuss implementing or reviewing your working from home policy, or other employment-related matter, please contact a member of your local employment team.
If you need advice or guidance if an employee has breached the confidentiality clause in their employment contract then Steven Skiba in our commercial litigation team can guide you through your options.
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