Work from home in Wales is now a legal requirement; the Welsh Government has now made it mandatory for employees to work from home unless they are unable to do so, scrapping what was originally just guidance.
In fact, they have gone further than that and brought in fines for anyone who goes to work when they could work from home. The Welsh Government has stated that an employee could be fined £60 for going to work, meanwhile employers could be fined up to £10,000 if they repeatedly fail to allow their employees to work from home.
These rules have been brought in somewhat under the radar and have brought with them objections from unions who are concerned of the impact this will have on poorer and more vulnerable employees.
The general secretary of the TUC has said he is shocked about the decision and has raised concerns that employees will be punished for the actions of their employers asking them, or even pressuring them, to come into work.
The Welsh Government have said an employee may be fined if they fail to work from home unless there is a reasonable excuse not to do so and employers are expected to take all reasonable steps to facilitate home working. The issue with this statement is that they have failed to provide any definition or guidance as to what constitutes ‘reasonable’. As has become common during the times of the pandemic, employers and employees alike are left trying to interpret exactly what the Government means.
While there is no guidance on who exactly will be seen as required to come into work or what sectors this may cover, it seems likely that the sectors originally covered by the work from home mandate will likely fall within the phrase ‘reasonable excuse’ for the purposes of the new rules, these being:
- Critical national infrastructure
- Essential public services
Employers may find that they are faced with some employees who may well be required to come into work but who refuse to do so because they are worried about being fined. This is somewhat understandable but does put employers in a very difficult position if or until the Welsh Government provides further, more detailed guidance on who is covered by the new rules.
The best advice for employers whilst in this period of uncertainty is to think about the business and the kind of work that employees carry out. Is it possible for the work to be done effectively at home? Does the work fall into any of the above categories which were exempt first time round? If it appears that an employee can carry out their work from home effectively, then employers should take steps to allow this, discuss the same with employees and ensure support is provided where it is needed.
If employees are unable to work from home due to not having the technology available to do so, or not having space at home, this could be seen as a reasonable excuse which allows them to come into work. Employers should carry out an assessment on each employee, considering their individual circumstances and documenting this so that, if they were to be inspected, they can provide the information relating to any staff who are found to be working in the office/workplace. While we cannot say for certain what the Government’s criteria is at this stage, this is good practice and allows employers to clearly show the decision-making process and have as much detail to hand should they be required to produce it.
On a more practical note, if it is the case that an employer’s staff are required to again work from home full time, employers should ensure they keep in touch with employees, make sure communication is maintained and try as much as possible to keep team working and culture alive, albeit remotely.