Protect your Business and your Staff whilst the Working From Home Rule applies

The current situation has catapulted working from home from an option that could be permitted by employers for certain staff or a business model adopted by some businesses to the only option for businesses to be able to keep going under the scourge of the coronavirus. Given the speed of the lockdown decision the vast majority of organisations have found that they can function quite well with their workforce working from home, dependent on the nature of the business. HR departments have had to make sure that the legal obligations with regard to health and safety of employees, which extends to staff working from home, are properly managed. Establishing that all staff are working in a safe environment within their own home may not be easy. Employers are obliged to maintain the trust and confidence of their employees and under the current restrictions they have no other option but to have faith that staff working from home are not working in an environment that exposes them to avoidable risk. Providing staff with a check list with points for them to answer covering the equipment and viability of carrying out the tasks they are required to perform will help to demonstrate the business owner’s attempt to ensure that their staff are safe.

Businesses also will have to trust that staff working from home do not pose a cyber risk. There are numerous avenues that could expose an organisation to liabilities arising from a breach or exposure via the actions of their own staff. Any employees who, during the normal course of their work, have access to sensitive client, staff or business information should be monitored as closely as possible to avoid an inadvertent or deliberate breach of the cyber security of the business. Whilst the insurance industry is overwhelmed with issues relating to the coronavirus pandemic all businesses should consider strengthening their indemnity against cyber and computer crime.

Many organisations breathed a collective sigh of relief at the Supreme Court’s decision last week in the case of Morrison’s vicarious liability for the actions of an employee. Following minor disciplinary proceedings a disgruntled member of staff, Andrew Skelton, who was in the position of handling the payroll records for the entire staff was asked to transmit the records for the whole workforce to Morrison’s external auditors, an annual task he had performed before. He made a copy the records for himself and subsequently released them to a publically accessible file sharing website. The subsequent class action brought by some members of the Morrison’s workforce held that Morrison’s was vicariously liable for the breach. The case went all the way to the Supreme Court. Lord Reed, the court president stated “The circumstances in which Skelton committed wrongs against the claimants were not such as to result in the imposition of vicarious liability upon his employer. Morrisons cannot therefore be held liable for Skelton’s conduct. It follows that the appeal must be allowed.”

Whilst this is good news for employers it must be remembered that a vindictive employee can cause real harm and illustrates how fact specific issues of vicarious liability can be. Not all employers will have the grit or money to fight the issue all the way up to the Supreme Court. In these unique times of furloughing, reduced salaries and the removal of perks and associated staff benefits, may result in resentment if the policy is not seen as even-handed, as individuals struggle to pay their way without the advantage of a full salary. Recently press coverage has highlighted some employers’ decisions, notably that exhibited by cash rich Liverpool Football Club actions in choosing to furlough only the non-playing staff and oblige them to rely on the government scheme. The club has now rescinded their decision following the resulting backlash from staff and bad publicity. HR departments must make every attempt to ensure that the decisions made in connection with the workforce in these unprecedented times is fair, impartial and non-discriminatory. Nevertheless, in certain circumstances employers must be alert to the potential for vindictive vengeance and shield the firm.

Legal Law Limited’s corporate and commercial team advise business owners to prioritise cyber awareness among their employees by arranging online information sessions and regular updates and check-ins. It is also paramount to ensure that employees follow the right procedures to limit their exposure and that their work devices (such as laptops and tablets) are secure.