Employment related legal issues arising from working from home

INTRODUCTION

In recent weeks, the World Health Organisation (“WHO”) has declared the outbreak of novel coronavirus (“COVID-19”) a “public emergency of international concern” and the number of confirmed cases of the virus has been rising around the world. To minimise the spread of COVID-19 in Hong Kong, the Government initially directed its employees (except those providing emergency and essential public services) to work from home until early February 2020 and has, since then, repeatedly extended those special working arrangements. The Government has appealed to private sector employers to adopt similar flexible work arrangements where practicable, leading many organisations to encourage or request that its employees work from home.

As the spread of (and uncertainty around) COVID-19 persists and working from home becomes the reality for many, it is important that employers take note of related issues which can arise.

HEALTH AND SAFETY

Employers in Hong Kong have a common law duty to take reasonable care of employees’ health and safety, and an obligation under the Occupational Safety and Health Ordinance (“OSHO”), so far as reasonably practicable, to provide a safe working environment for employees. This obligation extends to remote working as much as it does to the office. Employees also have a duty under the OSHO, so far as reasonably practicable, to co-operate with safety measures implemented by their employer to enable compliance. Should either the employer or the employee breach this duty, they could commit a criminal offence and be liable to fines (and in the employer’s case, a prison term could be imposed depending on severity).

Where an employee is working remotely, employers should take reasonable steps to ensure that an employee’s working environment is suitable. For example, any electronic equipment provided by employers should be properly tested and fit for purpose and Government health and safety guidance should be observed.

If an employee is injured while working from home, they remain entitled to compensation under the Employees’ Compensation Ordinance if the injury is the result of an accident arising out of and in the course of employment. This is a question of fact, to be analysed on a case by case basis, and will include factors such as when the accident took place, where it happened and what the employee was doing at the time.

INSURANCE

Employers should ensure that existing insurance policies apply as much to remote-working as to office-working and are advised to review policies and speak to insurers to confirm this is the case. Note that in scenarios where an employee has suffered an injury or where there has been damage to property, this could also be covered by a home insurance policy; in the event of an issue arising, an employer could ask for details of the employee’s policy to explore whether there is scope for apportionment of any liability.

REQUEST TO WORK FROM HOME

Some employers have specific home-working arrangements and expectations set out in an employee’s contract of employment or a staff handbook, for example. Requests to work remotely can also come from an employer or an employee, which can give rise to different considerations.

Employer request

Whether an employer has a right to require an employee to work remotely depends first of all on the terms of the contract and any pre-existing arrangements regarding home-working. In the absence of any express contractual right, an employee is obliged to follow the reasonable instructions of their employer – and in our view, it is likely to be reasonable for an employer to require employees to work from home, particularly where this is consistent with Government guidelines and recommendations. Although there have been no widely reported objections, employers may start to encounter some resistance from employees the longer the current situation continues. Individual objections to working from home should always be considered to understand the reason for refusal, and to investigate whether any measures can be put in place to address any concerns raised by workers.

Employee request

Under the Employment Ordinance (“EO”), an employee who reasonably fears danger by disease (in a manner not addressed in their contract of employment) can terminate their employment immediately without notice or payment in lieu. Similarly, an employer must also ensure that it acts in a way which does not undermine or breach the duty of trust and confidence, which is implied into every contract of employment; should it do so, an employee can claim constructive dismissal and leave employment immediately.

This means that if an employer requires an employee to work in the office (while a potential for infection remains), an employee may argue this entitles them to leave employment immediately and that this constitutes a breach of health and safety obligations. However, generally speaking, the risk of infection remains contained (at the time of writing) and it may be difficult for employees to establish that a requirement to work from their employer’s office breaches any legislation or their contract of employment. If an employer has complied with Government guidelines and best practice, it is our view that an employer can insist on an employee working from the location specified in their contract of employment.

Nonetheless, the employer should consider individual objections to office-working, particularly where an employee is pregnant, or has pre-existing health conditions which potentially makes them more vulnerable than other workers. 

CONTRACTUAL OBLIGATIONS

Employers should note that employees working remotely should receive normal wage and benefits in the usual way. In a scenario where an organisation’s premises close (for example, if an employee is diagnosed with COVID-19) and due to the nature of their job, employees are unable to work from home or another remote location, employers should still continue to remunerate them, as the employee will still be making themselves available for work. Employers may consider asking employees to take a period of annual leave or unpaid leave during any closure.

Note that some types of staff who are dependent on being provided with work by their employer may be able to claim they have been laid off, depending on the number of days they have been required to go without work. In our view, in the current climate, staff are unlikely to argue they have been laid off, given most workers are likely to prefer the contract to remain in place until the demand for their services increases again.

PRIVACY RIGHTS

An employee may use both personal and work devices to access their employer’s systems. Depending on software and equipment capability, employers may be able to access and monitor all information on that device without the employee’s knowledge, including private emails and communications. It is possible that at least some information accessed will be personal data under the Personal Data (Privacy) Ordinance (the “PDPO”). Employers should therefore ensure their privacy notice, employment handbooks and Personal Information Collection Statements (or “PICS”) make the employee aware that both private and work communications may be accessed by employers and are aware of the uses that could be made of that information.

CONFIDENTIALITY

Generally, data security and confidentiality are more difficult to oversee with remote workers as it can be easier for employees to access and remove information while they are outside the office. It is also more difficult for employers to ensure confidentiality of sensitive customer or client data if employees are accessing company systems from coffee shops or other public spaces as this data can potentially be viewed by unauthorised third parties looking at employee screens or extracting information from unsecured public Wi-Fi.

Employers should ensure that any work devices have appropriate restrictions and safety mechanisms in place to prevent misuse (accidental or intentional) and should verify that cybersecurity measures in place are suitable for remote working. This could include implementing a framework setting out how data can be kept confidential and secure while working from home, and ensuring relevant training is provided to employees so that they are aware of the risks involved, how to minimise such risks and what actions they can and cannot take in relation to confidential data. Employees should be required in their contract of employment to abide by all security and data protection policies and procedures the organisation has in place.

Employers could, for example, require employees to use privacy screens in public places, to “hotspot” from mobile devices as an alternative to public WIFI, to use automated download and access requests, and to update passwords regularly before they are permitted systems access. Where printing is necessary, employers should ensure the employee is able to safely dispose of confidential documents; if unnecessary, employers should expressly prohibit remote workers from printing or making copies of work-related documents.

DISCRIMINATION

Employers should note that treating employees unfavourably due to disability or race may be discriminatory and legally prohibited. An employee who contracts the virus will have a disability under the Disability Discrimination Ordinance (the “DDO”) which places obligations on employers to ensure that the employee is not subject to harassment and is not treated to their detriment as a result of infection. Employers considering workplace downsizing should take care that any actual, potential or suspected exposure to COVID-19, by an employee, their family member or close associate, is not a factor that is taken into account when deciding which members of staff should leave the organisation.

In the current environment, requesting an employee with symptoms of novel coronavirus, or who has recently travelled to China, to work from home is unlikely to be found by a court to be discriminatory, given the aim of reducing the risk of the virus spreading. If, however, an employee is dismissed only because they have been diagnosed with COVID-19, because the employer believes (without evidence) that an employee has come into contact with a carrier (e.g., a relative) or if a worker is asked to self-quarantine only because they are from mainland China, this could constitute discrimination.

HEALTH CHECKS

Some employers require remote-working staff to present at an office location at some point during the home-working period. Furthermore, many employers have started to implement temperature checks (often using a non-contact infrared forehead thermometer) as a condition of building access. The purpose of these checks is generally and readily understood by individuals and given their non-intrusive nature, it is unlikely objection would be made. Nonetheless, the collection of this information constitutes the collection and use of personal data under the PDPO so employers should ensure that they comply with the relevant employee notification requirements (including explaining what purposes the data would be used for and to whom the information may be transferred). We are aware many employers are choosing to supplement their PICS by sending an all employee email prior to commencement of the checks.

BUSINESS TRAVEL

Even with remote workers, the nature of some businesses still require overseas travel. In the present climate, requiring travel to high-risk areas such as China is unlikely to be welcomed by staff who could argue this is a breach of the OSHO and/or the implied duty of trust and confidence. Employers should consider how necessary travel is outside of Hong Kong and should look at postponement where possible, particularly given the risk of flight disruption (including cancellations and/or restrictions on individuals travelling from Hong Kong).

PRACTICAL CONSIDERATIONS

As well as legal considerations, there are a number of practical issues which can arise with remote working. This includes, among other things, encouraging productive working and guaranteeing that all employees feel they can work effectively as part of a team even though individuals are based in different locations.

Employers should ensure they have a clear communication plan and reasonable expectations in relation to working from home, check that employees have all relevant equipment necessary for their role (for example, printers and high-speed internet) and implement appropriate measures to supervise and monitor employee performance.

CONCLUSION

It is difficult to be specific as to the issues facing all Hong Kong-based organisations as much depends on factors which include business requirements to work from a centralised location, the level of employee travel undertaken and the extent of potential exposure to COVID-19. The precautions taken will also vary from business to business as the exact nature of the threat presented is still unknown (even amongst the scientific community) and each company will assess risk differently.

We are aware of the following measures and policies being considered by some organisations in the financial services sector in Hong Kong (in addition to routine implementation of hygiene precautions, such as additional sanitisation, the provision of handwash gel and facemasks):

  • ensuring that IT systems are sophisticated enough to permit large-scale (entire office) remote access so that employees can work from home and carry out their roles in the usual way
  • requiring that employees “self-quarantine” for a period of time after they return from personal travel outside of Hong Kong
  • where business needs permit and where tax, immigration and related considerations allow, agreeing to employee requests to work temporarily from an overseas jurisdiction with low reported infection rates of COVID-19 (for example, New Zealand and Australia)
  • encouraging video conferencing rather than face-to-face meetings

Given the evolving nature of the situation and the uncertain impact of COVID-19, employers should continue to observe developments closely and to follow guidance published by the Hong Kong Government, the Centre for Health Protection (Department of Health) and the World Health Organisation. They should also conduct their own risk assessments (with appropriate contingency planning) to identify operational threats and appropriate response mechanisms.

Whilst working from home remains the “norm”, the issues described in this article should serve as a useful starting point for employers to continue to ensure an effective and safe working environment which minimises risk to the workforce and the business.

Consultant, Simmons & Simmons

Trainee, Simmons & Simmons