Employers face litigation risk over workplace practices

A number of organisations have already revealed intentions for permanent changes to policies, following the announcement of the government’s roadmap out of lockdown. However, there are a number of legal requirements employers must ensure they follow before implementing new working arrangements.

Workplace policies and ‘place of work’ in particular, may be a contractual term and if so, employers are likely to have to consult employees before making permanent changes.

Additionally, organisations must ensure they continue to meet their health and safety obligations, which is challenging with more people working from home.

Amy Hextell, who is an employment law specialist at Pinsent Masons and member of Birmingham Law Society, explains: “The last 12 months have allowed companies to see the benefits of working from home, and a number of businesses are starting to implement new ways of working, including increased remote working.

“If place of work is contractual in nature, then consultation will likely be required before changes can be made. Unlike non-contractual polices, any contractual term can only be changed if there is an existing contractual right to do so, by agreement, or by terminating the existing contract and offering re-engagement on the new contractual terms.

“A refocus on health and safety obligations will also become more important, especially where employers encourage staff to work from home on an ongoing basis. Employers have a duty of care for the health and safety of their workforce, regardless of whether staff are office-based or working remotely. As such, employers must ensure that they have an understanding of the working environment of all team members to avoid any risk to their safety.

“It is important to carry out work station assessments and consider safeguarding the mental health of home workers in good time before policies are implemented. At the same time, employers should not rush into making permanent decisions without having gauged staff preferences and properly thinking through the steps needed to ensure health and safety of those working from home.”