You must ensure that you have the right IT, infrastructure, security and communications systems in place – not only in the office but also in the home environments of your staff.

Hardware

You should provide your staff with computers and mobile phones which you can configure. You can only protect your network, if you control precisely which devices can access your network; which means keeping work devices completely separate from those being used for personal use.

Team Communication

There are a lot of other ways to promote collaboration and communication within your team outside of remote meetings. Team communication tools enable the sharing of editable documents to make content creation seamless. If you want to talk with team members without using audio-visual features, many apps provide a chat to exchange feedback in real time.

See: The ExportersAlmanac Team Collaboration Platforms.

Project Management

There are lots of different project management software tools that allow for planning and organization online. Collaborate using file sharing, coordinate individual tasks and deadlines with a visual board, and get a complete overview of what everyone is working on.

See: The ExportersAlmanac Project Management Software.

This section has been very kindly contributed by LawBite. If you have any questions regarding the points raised here, please contact LawBite directly.

Covid- 19 - working from home in 2020 and beyond

With the new era of working from home, there are many questions currently being asked by business owners and employees alike. Most notably they want to know what their legal rights are. The common questions asked are:

• What are the implications for employers? (Liabilities, HR responsibilities, can they monitor work levels? etc.)
• What are the implications for employees?
• What needs to be done: (a) in the workplace (b) with relation to suppliers and clients - for the physical transfer of goods?
• The EU's Digital Services Act and how will this apply to anyone offering services into the EU - and will it become a global standard?

Working Remotely – Surveillance

For those employers who are considering surveillance as an approach, the key is to abide by the data ‘holy trinity’ of transparency, proportionality, and legality, employers should:

• Complete a data protection impact assessment setting out the purposes of the monitoring and justification for it, the adverse impact on data subjects, and any mitigation.
• Inform employees of the monitoring that is being undertaken and the reasons why.
• Ensure that there is a legal basis for processing and that consent is elicited where necessary and do not process special category personal information without a reasonable justification.
• Limit the number of people who have access to the software and ensure they are properly trained in confidentiality and data security.
• Avoid using covert monitoring except in the most extreme circumstances (e.g. where criminal activity or similar is suspected).

At the end of the day, an employer must consider the longer term effects of essentially telling your employees they’re being monitored:

• Will the initial impact be motivational; or the very opposite?
• Knowing that they are being monitored, will employees become increasingly cautious and lose confidence in their own abilities or in the faith their line managers have in them?
• Data protection law requires consent before meetings (of any number of people) can be recorded. If phone and video conference calls are routinely recorded as part of employee monitoring will any employee feel enabled to object to the recording of their voice and appearance and withdraw from a meeting?
• And once lockdown ends, does your employer continue to monitor you when working remotely?
• What are the long term effects of such policies on the motivation of employees and any relationship of trust which might have previously existed between a business and its staff?

Working Remotely – The Legal Element

What are the effects if any/all of this has on each business’s legal arrangements?

• Are your terms of sale written for business to business sales? Do they envisage direct selling? Do they work for distance selling, i.e.:
• Do they cover consumer rights if it becomes necessary?
• What is your returns policy? Does this comply with the CMA 2015?
• What do these say about personal data?
• Does working on a distributed basis affect technological or procedural data controls?

Other considerations:

• Do your agreements with resellers limit your ability to sell direct to end users who would otherwise be their customers?
• Do your software licences permit the use of software over VPN’s?
• Do your employment contracts permit surveillance to take place?
• Has your business conducted the data protection impact assessments necessary to implement the changes required and remain compliant with the GDPR?
• Do your office space leases (or commercial agreements) contain Force Majeure clauses which could help you control risk and costs, or might they end up costing you?
• How reliable is your business interruption insurance?

What are the legal implications for employers?

There are several implications for employers when their employees start to work from home, having spent their previous working time in the office/employer’s premises. Some of these implications and questions asked are:

• Do I have to let my employees work from home?

Official government guidance at the time of this note is that office workers who can work “effectively” from home should do so. Public sector employees working on essential services, for example education settings, should go to work where necessary, and anyone else who cannot work from home should go to their place of work.

• What does the employment contract say for place of work?

The first thing to look at is the employee’s contract of employment/terms and conditions. Does this allow you, as the employer, to ask the employee to work from home?

• What happens if the contract is silent on working from home?

You should seek to amend the contract of employment to cover working from home, with the employee’s consent. You should also make sure that your policies and procedures cover homeworking and amend them if they do not. Policies and procedures (usually in a document such as a Staff Handbook) are normally expressed to be non-contractual. If that is the case for you then you can usually alter those terms without the employee’s consent as long as the terms haven’t become contractual (by way of an implied term) as a result of custom and practice.

• What are the issues I need to consider?

The main things to cover in the employment contract when an employee works from home during the coronavirus pandemic are:

1. equipment and insurance;
2. health and safety issues;
3. data protection and confidentiality;
4. expenses.

Equipment and Insurance

Think about what equipment an employee is going to need if working from home to carry out their role (in a safe way). That might be as simple as a mobile telephone, or they might need a laptop/computer; printer/copier etc. Think too whether they might need any company stationery to carry out their role, such as letter headed paper; pens; envelopes and stamps etc. If you do provide any equipment then you should make sure that the contract provides that you have control over the employee’s use of the equipment; that either you or they are responsible for insuring it and claims against them by a third party; that it is used for business purposes only and no one else is allowed to use it.

Health and Safety

During the coronavirus pandemic, you will be unlikely to require that employees allow you to enter their home in order to inspect your equipment, or to carry out the normal health and safety checks that you might normally do. However, guidance from ACAS in their Working from home advice suggests that you should be checking that the employee feels they can carry out the work at home safely; that they are aware of the normal breaks that they should be taking under the Working Time Regulations 1998, and have a duty to take them; that they do not feel alone when working from home (with managers/other colleagues having regular contact with them whether that is by video meetings or telephone or otherwise) and that you make reasonable adjustments for those employees who have a disability.

Data Protection and Confidentiality

Make sure the employee is responsible for ensuring your confidential information is secure (such as installing encryption software and passwords on the employee’s laptop and making sure that paper files are locked away when not in use or are being kept confidential and away from the sight of others when they are being used), and that they are complying with your policies such as Data Protection Policy and IT and communications policy. If any training is needed so that they comply with the General Data Protection Regulation, make sure they have it.

Expenses

Where an employee is working from home, they may have to report this and may be able to claim tax relief, and so you should guide them to helpful sites and information such as the https://www.gov.uk/ website (for example, ‘claim tax relief for your job expenses’).

What other issues should I be thinking about?

You should also consider issues such as the following:

• The training you give to managers who might never have had to manage their staff whilst working remotely. There are plenty of free courses offering this, and you could start with the ACAS website – book training on how to manage homeworkers;
• Are your employees allowed to work from home or does their mortgage provided or landlord prevent it in some way;
• If working from home is the norm for employees, do you have a right to enter their home to inspect equipment etc;
• If your employee has to look after their children (perhaps because of a further lockdown or period of self-isolation), how can you manage things so that the employee is able to do both. Be mindful of how stressful it will be for the employee, and talk with them so that you can have a flexible way of working (for example working different hours when the children are in bed/napping; different or less working days; reducing the scope of their work and being flexible about deadlines if that is possible;
• Make sure that your employees know what is expected of them now that they are working from home, including: when they will be available to work; how they will keep in touch; ensure their work-life balance is managed properly; how you will be measuring their performance (if that differs) and they know who they can talk to if they need to or if their circumstances change;
• Whether your IT systems are able to cope with the sudden change to working from home and the IT support your employees might need – do you need to amend your IT support and how do you implement those changes;
• What monitoring can you do and how do you do that now that you cannot see the employee;
• If you have employees who are off on maternity/sick/parental etc leave, make sure you keep them in the loop and receive the necessary permissions to alter their employment contracts if necessary, for when they return to work (at home).

What are the implications for employees?

The implications for employees who have been asked to work from home during the coronavirus pandemic are:

• Do I have to work from home?

For some employees there might be reasons why working from home is impossible, and employees should discuss this with their employer. Generally speaking, if you can carry out your job from home then you can probably be required to work from home, or agree to take a period of unpaid leave (or maybe SSP if you are sick).

• My contract doesn’t say anything about working from home.

If that is the case, then you should agree with your employer what is expected of you when working from home, including the following:

Above all, the best thing for you to do is to talk frankly with your employer, explain your concerns and work with them – this is a new situation for them as well.

Supply of Goods and Services

The impact of the covid pandemic has affected the supply of goods and services both in the UK and overseas.

As workforces have been reduced due to illness and requirements to isolate, businesses have found it more difficult to source certain parts and key ingredients, to transport goods produced and, in some circumstances, to pay for goods once received.

From a legal perspective this has meant that parties have been put in positions where they are in breach of contract where it was not previously envisaged. At times, this has resulted in disputes or termination of contracts but at others the parties have worked together to try and find a solution to the new situation they have found themselves in.

Whether you are buying or selling goods or services it would be wise to review your contract terms in particular:

• What is covered by force majeure and what are the procedural requirements for the clause to be brought into play;
• Obligations under the contract, e.g. minimum order requirements – can you/the other party keep complying?
• Limitation of liability in the event of a breach and rights to terminate.

As well as considering the contract terms, it is worthwhile keeping good communications with the other contract party to avoid any surprises and to try and manage any issues pragmatically. Where any variations to contracts are agreed they should be recorded in writing and in accordance with any contractual requirements for changes.

Finally, businesses should be mindful of the increased risk of fraud – IT systems are being used remotely, more online banking is being carried out and new suppliers are often needed in short timescales which bogus suppliers are taking advantage of. As early as April this year, a multi-million pound fraud involving bogus suppliers of face masks was reported by Interpol and sadly similar cases continue to be seen.

Business Interruption Insurance

Many businesses carry business interruption insurance and have tried to claim under their policies due to the impact of the covid pandemic. Insurers in the UK have refused on the grounds that there has been no physical damage to property as a result of the covid outbreak or because business closures have resulted from national lockdown measures rather than an outbreak of the virus at or near the insured’s premises.

The stance of insurers is being challenged in a test case brought by the Financial Conduct Authority (FCA) on a range of sample wording used by insurers who have agreed to participate in the case. The High Court found in favour of the FCA on the majority of issues but the ruling is likely to be appealed. Both businesses and insurers are eagerly awaiting the outcome with a potential flood of claims if the High Court ruling is upheld.

Any business that believes it may have a claim should notify its insurers (if it hasn’t done so already) to preserve the chances of bringing a claim.

While there is uncertainty about policies in place at the time the pandemic struck, it is likely that insurance policies will have specific exclusions in relation to issues arising from pandemics going forward. Businesses need to be mindful of this when negotiating and entering into contracts and try to limit their exposure in different ways.

The road not yet travelled (EU Digital Services Act)

The legal framework for digital services in Europe has been unchanged since the adoption of the e-Commerce Directive in the year 2000. What this means is that services which support e-commerce across the EU are operating to a regulatory framework which preceded the birth of smartphones. Smartphones and tablets, in particular since 2007 and the launch of the first iPhone have grown the universe for e-commerce exponentially. – Expect changes to come from both the EU Commission and the UK Government.

For employers and managers, the prime traditional concern prior to the crisis was the issue of “trust”. How to manage and monitor employees was at the heart of wanting staff to work from the office.

When staff are working remotely it is not so easy to see whether they are working or not. But this then begs the question whether simply seeing staff at their desks was ever enough.

There are companies that offer software monitoring systems (e.g. Hubstaff and Sneek) but their use can be resented by staff: see the research by the Chartered Institute of Personnel and Development.

The questions you have to ask yourself are whether it is possible to move to a predominantly management by results? If the desired results are achieved, do you actually care if the staff member completed the task in 1 hour rather than 8?

This approach may require a change in management objectives and style e.g.

• What do we actually expect\require from a particular member of staff?
• How can this be quantified?
• Does the staff member agree with these objectives and the time allocated?

Management then have to decide on:

• What systems to use to monitor progress.
• How to be supportive to - and not micro-manage - their subordinates.
• Are you there to control or encourage?
• If objectives are not being met - how do you deal with this? (It is unlikely that a dressing down over zoom will work.)

The following are some points you need to consider when designing your remote working strategy.

Network Security: Virtual Private Network (VPN) vs a Remote Desk Access System (RAS)

One of the decisions that has be taken when having a remote workforce is whether to use a VPN or RAS.

The fundamental difference between that two is:

1. With a VPN, each laptop or PC is connected to the other and users work off their own device (but are able to transfer files to and from their devices to others on the network.
2. A Remote Access System (RAS) is where users connect to a central server and all processing and data management are managed on that server, no file exchanges can take place unless specifically authorised.

Further advantages of an RAS are that files are not transferred between the user’s and the office’s devices. Therefore:

1. You do not lose control over your files.
2. The user only sees an image of the file as it is being managed on the server or PC in the office. This makes using very large files much easier and avoids bandwidth bottle neck problems.

Endpoint Security

When storing company data on personal devices, it is vital to use a strong and reputable anti-virus program for threat detection, and schedule frequent scans to remain virus-free. Furthermore, as mentioned above, using an RAS means that your data is kept within your company network and you maintain the benefits from the security measures your organisation already has in place.

See: The ExportersAlmanac Anti-Virus & Malware Services.

Physical Security

If you are working in a public space, line of sight should be considered. Who can see your screen from the seat you’ve chosen? If you are working on or with confidential things, find a seat with limited access to your screen. Make sure you take all devices with you when you use the bathroom and when you get up for another coffee, too. Do not leave any company hardware in your car and make sure you always lock doors. Keep work data on work devices.

Download a password manager so that you and your staff can use longer, more secure passwords without needing to remember them. Do use multi-factor authentication; two or more pieces of evidence to grant access to a computer. Most phones and laptops have built-in encryption options - ensuring that all your devices have this enabled can prevent any data being leaked or access should the device be lost or stolen.

See: The ExportersAlmanac Password Managers.

Allowing staff to work remotely without a policy in place can lead to misunderstandings on what is expected from them, which in turn generates disconnect and confusion on both sides. Here are some general guidelines that can help you establish some formal ground rules:

Staff Eligibility

Decide which roles can be performed successfully away from the office. You will find that some positions will be more suited to telecommuting than others. Define when an employee becomes eligible for telecommuting privileges. This might be the moment they sign their employment contract, at the end of their probation period, or after a successful performance review that confirms that they have established themselves as trustworthy – every employer will have different preferences.

Performance

Decide in advance how a remote employee’s performance will be assessed. If it makes sense for the position, you should set some productivity goals.

Employee Availability

Communication is the key to successful remote working. Therefore, it is very important to set expectations about the availability and responsiveness of telecommuters from the start. Do your team members need to be available during traditional office hours, or are they free to schedule their workday however they want so long as their work is done? Do you expect everybody to answer emails and messages straight away, or are you happy for them to do it in their own time? Will remote meetings be scheduled in advance, or should your employees be available for unscheduled calls? Whatever your choices, make sure to communicate them in advance so the rest of the team can plan their workdays accordingly.

Technology, Equipment & Security

When you set up a remote working arrangement, your remote employees need to be able to do their work away from the office without incurring any expense, aside (perhaps) from sourcing good internet connectivity and a suitable workspace. This means that you need to provide (and pay for) all the equipment they need. It is also a good idea to educate them on basic cybersecurity best practices, especially if they are planning on working from a public space, and to set rules on what company equipment should not be used for.

Protecting Confidentiality

Telecommuters need to keep in mind some basic guidelines to protect the confidentiality of sensitive information. For example, confidential conversations with customers and colleagues cannot be conducted from a place where they can be overheard.

Suspension of Privileges

Working from Home should be considered as a “privilege”. Therefore, it is very important to communicate what the consequences are for breaking these ground rules, according to the severity of the infraction. Minor infractions like an occasional dip in productivity could be addressed by more frequent performance assessments with the line manager, while major ones such as continuous, unjustified lack of responsiveness could result in the suspension of all remote working privileges.

Notwithstanding the above, the overuse of video conferencing over the past year has resulted in “Zoom Fatigue”. Zoom (including other similar video conferencing systems) drains your energy because it flattens all of your social interactions – personal or professional – into the same, unnatural grid of disembodied faces. The four chief factors include

1. Constant, close-up, interrogation-like eye contact from the other participants that does not go away, even if you are not the one speaking;
2. Constantly looking at your own face,
3. Having to sit still for an extended period; and
4. Not being able to easily and accurately pick up on cues like body language.

You should take into account that there are four main ways of communicating and balance their usage accordingly:

1. Face-to-Face: Makes it easier for participants to perceive the subtleties of interaction, such as people's movements and the inflection of their voices.
2. Video: The next best thing but not when used nine-to-five, or for every meeting.
3. Phone Calls (audio only): Perfectly acceptable alternative to video and less draining than video sessions.
4. Text (email, chat and SMS): Best used when not requiring an immediate, interactive response.