Regulatory issues for “portfolio workers”, homeworking and the gig economy - Implementing the Future of Work will have compliance implications

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Regulatory issues for “portfolio workers”, homeworking and the gig economy banner

When Future of Work (FoW) was a matter of gradual evolution, a lot of the regulatory issues associated with it might have sorted themselves out over time. Now that COVID has speeded up this evolution, we find ourselves in a new status quo where, for many organisations and people, a significant level of (say) home-working is going to be part of the longer-term norm, and we need to be sure that we have put, or are putting, appropriate regulatory governance in place.

First a warning. I am not a lawyer and I will be trying to cover both employers and employees, and both large and small organisations. I will attempt to describe the possible issues as organisations make changes today that they used to think of as FoW but do seek professional advice for the specifics – and don’t just rely on the opinions of an “influencer” on a social media site.

Start off by thinking about your organisational culture today and its attitudes regarding regulations and compliance; and also think about its associated ethical and well-being issues generally. Typically, this could include surveying your staff to find out what their ‘ideal’ working environment would be like; safety and security also provide good starting points. Regulators may well expect you to be “well-governed” and able to explain why you do what you do; have a think about what this means before jumping into simplistic “check box” regulatory compliance. You should think of the changes brought in to combat the COVID crisis as giving you an opportunity to review your regulatory compliance in particular, and ethical norms in general, as less-than-optimal behaviours and standards can easily creep in over time.

Compliance with the (correct and applicable) regulations is necessary but not sufficient – when your “portfolio workers” burn out and make bad (even illegal) decisions, and your new FoW-inspired operation falls apart, saying “but we told them to follow all the regs” won’t count for much. The first essential for governance and regulatory compliance is some sort of empathy with the people involved – especially if, for example, they’re new to working at home, or managing homeworkers; or operating with the gig economy. But, all involved must remember that workers, as well as employers, do have rights and legal obligations.

I’m largely concentrating on homeworking in this article, as this is new (as a result of COVID) in many organisations and exemplifies a lot of the potential issues generally. An employer must provide a safe and supportive environment for homeworkers; there is government advice here. A company also has extra confidentiality and security issues and obligations to deal with if workers are outside the company perimeter, according to the Information Commissioner’s Office (ICO). And there is a useful (but not necessarily exhaustive) discussion around security here.

Large organisations will already (hopefully) have procedures that cover homeworking, zero hours contracts and the like, if they are, or might be, used. Even if they don’t, Talent Management – or, to use older and less politically-correct terminology, Human Resources (HR) – professionals will know how to get up to speed on them (as long as senior management recognises the need for this and provides the necessary resources and training). Nevertheless, even large companies may face unexpected cultural issues as the FoW eventuates today – employees with portfolio careers, working for different, possibly competing, employers, for example.

Smaller organisations may not have have had to deal with the complexity of the new regulatory environment before. They may find something like Lawdonut useful; for homeworking for example, although you should still check the ultimate provenance of any advice before following it. The page linked includes:

  • Choosing which jobs are best suited to homeworking (which will impact on the regulations you’ll have to worry about).
  • Providing the facilities a home office should offer. It has to meet Health and Safety at Work regulations (including health and posture); provide appropriate technology and (fast broadband) connectivity; have appropriate insurance (does homeworking invalidate domestic insurance?); and there must be an appropriate risk assessment. Planning permission is not normally required, but might be; business rates usually aren’t an issue, as long as the room has a secondary domestic purpose, but mortgage or rental contracts may be impacted by business use.
  • Running a homeworking pilot, to discover any overlooked issues (including regulatory ones) while the scope of impact is still manageable.
  • Employee contracts. Existing ones may be flexible enough, but check this before homeworking starts. Contracts might cover, for example:
    • Where the employee will work and for what hours;
    • Mutual rights for terminating the homeworking arrangement;
    • Supply, ownership and usage of any necessary equipment;
    • Company telephone and broadband provision;
    • Any necessary employee actions for regulatory compliance (the employee should agree to this) and who pays any costs involved – usually the employer;
    • That there is no change to other employment terms and conditions such as pay, hours of work, holiday entitlement and pension contributions. (if you force employees to accept changes that result in them leaving, they might have a case for constructive dismissal};
    • Making it clear that homeworking is not self-employment (HM Revenue & Customs is unlikely to accept that it is).
    • Dealing with (for employees changing employer as part of a move to homeworking) the Transfer of Undertakings (Protection of Employment) Regulations (TUPE).

There is plenty of similar advice about regulations, and complying with them, on the Web but I’ll repeat my warning: read widely but stick to recognised government sources, established specialists or legal firms that have a real existence, with an established provenance when the time comes to take action. Treat online opinion and social media very carefully – it can be useful for highlighting potential issues; but don’t let it distract you from the commonplace and mundane – with scary but unlikely scenarios, which may not even apply where you are working. Here are some useful sources:

Finally, we firmly believe that good ethics promotes business but remember that there is more to ethics than regulatory compliance – an ethical and supportive culture also matters. Homeworking, for example, may require a change in management perspective – “presentee-ism” culture must end and organisations will need to shift to management by outcomes. Management training may be needed, around implementing new ways of demonstrating that employees are meeting objectives. Remember that just because you can do something – it is legal – doesn’t mean that you should do it. For example, make your own mind up about the ethics of workforce surveillance – as in here – after reading this.

The ICO may well find that the use of Office 365 Productivity Scores is legal (but perhaps only until someone shows it how easily anonymity can be, or has been, broken) but that isn’t the point. What is more to the point is whether your specific use of it meets “acceptable” ethical standards as well as complying with the law.

This is a concrete example of a more general problem facing organisations adopting what they used to think of as FoW, today. What in the organisation’s existing culture needs to change; and what are the potential unintended consequences of this, for both employees and employer (as well as the potential impact on regulatory compliance)?

And what aspects of the organisation’s current ethical frameworks and cultural mores must it ensure are preserved, despite the adoption of new approaches of doing business, such as homeworking?

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