Even if they can sort the trust issue, there are still some key legal considerations for employers.
We have become information junkies. The web is booming, thousands of apps come into being each month, and we have constant entertainment feeds to read and video clips to watch. And now, information has turned inwards – selfies, GoPro, Snapchat – and multiple items of wearable technology that tell us how we are doing against our goals to be healthier, leaner, or “buffer”. This technology also allows us to make choices about how we work: do we want or need to slog it out in an office five days per week? Can we work from home or from wireless enabled out-of-town hubs?
BRAVE NEW WORLD
Remote working is now completely doable. But the operative word is working, rather than “remote employment”. There is a decision here for employers: will the remote worker be an employee or self-employed? You have more control over an employee, but arguably more responsibility and more onerous legal obligations – and it’s more expensive too. With a self-employed worker, there could be more flexibility.
However, if the employee works almost exclusively for you, they will have an argument for claiming employee status. This could be important if the relationship is terminated after 24 months – they could argue unfair dismissal and redundancy rights, for example. You will have less control over a worker and, if the worker produces intellectual property, you will have to ensure that those rights are expressly assigned to you.
Whatever the reason for remote working, trust is vital: Yahoo pioneered home working, but changed its mind because at least one homeworker had sub-contracted his Yahoo job while he pursued another career. If you cannot trust your workers, then remote working is risky.
If you can overcome the trust issue, some of the practical and legal issues that you have to consider include:
1. Amending standard terms of employment to change the place of work.
2. Making a health and safety audit of the employee’s home office.
3. Ensuring that confidential information and potentially sensitive personal data is protected when it’s outside the office.
4. Agreeing whose equipment will be used.
5. Working out whether you need to provide any special equipment.
6. Deciding what the protocols are for connecting devices to your systems.
7. Considering insurance.
8. Looking at the tax consequences of the worker using their home as an office.
9. Agreeing a monitoring strategy – even if the worker is using his or her personal equipment.
10. Making clear where the boundaries lie between working and non-working time.
Remote working does mean a loss of workplace sociability and creativity. And of course, it’s not necessarily appropriate for those who have line responsibility for others who are in the office. It does, however, give flexibility to the company and worker, which can be attractive in the ongoing “war for talent”.
As personal data junkies, how should we treat data we have access to? Most well-drafted company IT policies usually permit “reasonable use… for private purposes,” but stress that the company can monitor use. That said, the Information Commissioner’s guidance suggests that, if an item is marked or filed as “personal”, the company should consider whether it is “proportionate in all the circumstances” to actually open these items.
But with remote working being ever more achievable, as an employee, you would be well advised to be cautious about what you do with the personal information that you are creating – and to remember that remote working does not mean out of sight, out of mind.
Richard Isham is a partner advising on all aspects of employment law at Wedlake Bell.
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