Are you prepared for the legal (and possibly financial) consequences of failing to provide home-based workers with a safe working environment?

The period of enforced lockdown brought on by the pandemic has arguably changed the way we work forever. For many employees in certain sectors and roles, the traditional model of “going to the office” may never return. 

Companies like Twitter and Facebook are already discussing how they will adapt their work cultures to the post COVID-19 world. They are seriously looking to move to work-from-home-only models. The medium of new technology: messaging apps, video conferencing and online discussions, was found by many to be a success during the pandemic lockdown. 

Even if less hi-tech companies do not change so drastically, it is inevitable that some employers will take the opportunity to pare down costs and downsize their physical presence by allowing workers to operate remotely for some – or all – of their work week. 

Companies are likely to receive many more formal flexible working requests from employees to reduce hours and/or to change from being office based to home based for some or all of the working week. The reality is that unless this initiative comes from the employer, the employee does not have the right to demand to be homebased. They can, of course, submit a formal flexible working request but the employer is not obliged to accommodate the request if it does not consider it to be in the best interests of the business at the time. Employers should ensure they deal with any such request consistently and correctly (and in line with the statutory obligations) to avoid exposure to Tribunal claims. 

Whatever the driving factor, the net result is likely to be more people working from home in the future, which means that employers must now consider not just the technical challenges of providing seamless access to company systems, how to manage their staff remotely and suitable communications but they must also review their legal obligations for protecting offsite data and ensuring the safety and wellbeing of employees.

This is a major step-change for businesses and the wise employer will consider all the potential risks as we move into this unchartered territory.

WHAT DOES HOMEWORKING MEAN FOR THE EMPLOYER?

This is where it gets complicated. Both criminal and civil law apply to workplace health and safety. As an employer, you must protect your workers and others from getting hurt or ill through work. If you do not, a regulator such as the Health and Safety Executive (HSE), or your local authority, may take action against you under criminal law. Under civil law, if somebody has been injured or made ill through an event that can be proved to be a result of employment, they may be able to make a compensation claim against you. 

Even in your employee’s home.

Remember, as an employer, you have the same legal ‘duty of care’ for a homeworker’s health, safety and wellbeing in their own home as you would for an employee working on company premises in an environment you control and manage. This is a major change and employers will need to pay great attention to the legal requirements or face the painful and expensive consequences. As it stands, if this duty of care is breached and you are found liable of having caused or contributed to any harm suffered by your employee(s), you may be ordered to compensate them. 

In particular, if you fail to carry out a risk assessment, an employee could potentially bring a personal injury claim against you on the basis that there was a breach of the duty of care that is owed to them. Or, if as an employer you fail to purchase employers’ liability insurance sufficient to meet the cost of compensation for your employees’ injuries or illness, you risk committing a criminal offence – with a hefty, daily fine. 

If an employer does not comply with a regulation relevant to the work environment, you may be committing a criminal offence and could:

• receive a verbal or written warning;
• receive an improvement or prohibition notice; and/or 
• be prosecuted

If the HSE has to help you put things right, you will also need to pay for their time. This is called a ‘fee for intervention’ – yet another cost to your business.

The major piece of governing legislation for employers is The Health and Safety at Work Act, 1974 (HSWA). In Section 2(1) it states that “it shall be the duty of every employer to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees”. In addition, under The Management of Health and Safety at Work Regulations 1999, employers are, as far as is reasonably practicable, responsible for the health and safety of homeworkers. The umbrella concept of these laws is to make sure employees are safe at work. The obligation to provide a safe place of work covers situations where employees work in places not controlled by their employer. 

Under HSWA, employers require their employees to conduct a suitable and sufficient risk assessment of their homework areas to identify any potential risks and enable the company to make any reasonable adjustments. 

This means that you, the employer, must equip your employees with safe and properly maintained equipment, even in their own homes. If employees are working with particular equipment at home, it will be expected that the equipment is of a sufficiently high quality to avoid risk of injury or harm to them. 

It is not just equipment that must meet health and safety standards. There needs to be an overall plan. Employers with 5 or more employees are required to produce risk assessments and have a Health and Safety Policy covering three areas:

Part 1: Statement of intent

This is your general policy on health and safety at work, including your commitment to managing health and safety and your aims. Signed by senior management and reviewed regularly.

Part 2: Responsibilities for health and safety

Here you list the names, positions and roles of the people in your business with specific responsibility for health and safety.

Part 3: Arrangements for health and safety

You must detail the practical arrangements you have in place, showing how you will achieve your health and safety policy aims. This could include, for example, carrying out a risk assessment, training employees and using safety signs or equipment.

THE RISK ASSESSMENT

You may be required to perform a Risk Assessment of your employee’s home. This is a detailed document covering varying degrees of severity to an individual from the seemingly trivial to life-threatening. 

As an employer, you are responsible for any equipment you supply, and the safety of these devices will be your responsibility. If the employee is injured as a result of defective or inadequate equipment that you supply or approve, you could be held liable. Additionally, if the employee, or another member of the employee’s household, has an accident, such as a trip caused by a laptop power cable, the employer could be held liable. 

The government has a checklist it calls the Health and Safety Toolbox which helpfully lists the areas of concern for a risk assessment. For example, the Display Screen Equipment (DSE) workstation checklist will check, amongst other matters, that the desk, chair, lighting, computer, mouse, keyboard and screen meet the government’s specifications and are legally compatible. 

The Health and Safety Toolbox also covers:

• Electrical safety: Ensure that electrical equipment and fittings are in a working condition and free from damage such as frayed cables. The employee should understand the safe usage guidelines for any equipment you supply.
• Fire safety: Check for overloaded extension cords and dust-clogged heat vents. Provide smoke alarms and fire extinguishers. A fire escape should be identified and kept free of obstruction.
• Gas safety: Check ventilation is clear, and appliances are installed correctly.
• Ensuring that work equipment supplied by the employer and used at home is suitable and maintained as required by the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306).
• Accident Reporting Procedure: (Reporting Injuries, Diseases and Dangerous Occurrences Regulations 1995 (SI 1995/3163).
• First Aid: Supply a first aid kit, if necessary. (Health and Safety (First Aid) Regulations 1981 (SI 1981/917). 
• Mental health checks: Monitor stress levels of employees, including providing a reminder to take breaks and work usual hours. Also, you must check in on them to make sure they are coping with the situation.
• Correct handling of items: Proper training might be required to minimise the risk of injury, such as the correct way to pick up a box.
• Personal protective equipment: Assess need for wrist-rests, risers, eye-strain glasses, ear protectors, etc.
• Trip hazards: From cables to carpets they must all be secure.

Other factors to consider are:

• Children, elderly parents, third-party tenants may be present.
• Is the kitchen/bathroom floor slippery? Are rugs and carpets secure?
• Is assistive equipment needed for disabled employees? 
• Are all chemicals stored securely?  Could there be mould or asbestos present, etc.  

DATA PROTECTION

As the employer you will also need to ensure there is an appropriate system in place to comply with data protection requirements. Under Article 5(1)(F) of The General Data Protection Regulation (GDPR), it states that data should be “processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing against accidental loss, destruction or damage, using appropriate technical or organisational measures”.

To satisfy these requirements, employers may carry out a data privacy impact assessment of the data protection implications of homeworking. Some of the issues the employer should consider include:

It is essential that employers consider their data protection obligations in light of their employee’s homeworking. Not only does the Information Commissioner’s Office (ICO) have the power to impose large fines on data controllers for breaches of GDPR but companies should consider action that may be taken by their clients in the event of a breach. Consideration should also be given to the possibility of negative media reporting of any breach, which could impact the business in the long-term. 

Special rules cover workers in vulnerable groups such as migrant workers, young people and those who are pregnant or disabled. As mentioned above, where homeworking might lead to mental health issues, these too could fall under the responsibility of the employer. 

Employers should adopt the same approach to the assessment of home workers as they do to in-office workers. Currently, it is not usually necessary to visit your employee’s home to carry out a risk assessment. HR managers can provide the employee with a detailed self-assessment questionnaire as part of a firm’s legal responsibilities for homeworkers. When the pandemic passes, it is possible that in-person site assessment visits by the employer will be required by insurers.

As homeworking is likely to continue for some employees, it is important for employers to use common sense to mitigate the risks. Often, these risks are company specific. Nonetheless, employers should ensure they document their assessments and policies implemented as this documentation will be essential in the defence of any claim brought against them. Employers should also ensure they stay abreast of the changing situation and remain very aware of new government advice and promptly implement any changes in the law. Consult with your lawyer or HR advisor regularly to ensure you are in compliance.

INSURANCE

Allowing your employees to work from home requires many different types of insurance: employer’s liability insurance (as mentioned above, failure to have this can incur a fine of £2,500 per day), property insurance (laptops, modems, routers, etc.), cyber insurance (malware exposure, data breaches and malpractice, etc.), group personal accident insurance and whatever further insurance might be specific to your line of business. As an employer it is your responsibility to ensure these policies are in place and adequate to whatever demand might be placed upon it. Consulting an expert is strongly recommended.

TRAINING AND EDUCATION

You need to ensure that your employees are up to date with the relevant training and qualifications required to perform their job legally and properly in their home or at your place of business. Ask yourself these questions: Do I subscribe to the proper and most appropriate online platform to enable them to do this? Do I need to supply them with PPE to attend a face-to-face seminar or course? 

Remember, should your employees not be adequately equipped with the necessary professional knowledge or protective equipment, you could be liable for heavy fines and negligence claims.

ALCOHOL AND DRUGS

Under the HSWA, if an employer allows an employee under the influence of alcohol or drugs to continue to work – placing themselves and others at risk, such as members of the public – they could incur a penalty or prosecution. It is the employer’s responsibility to assess these risks, which are specified in the law.

Employers are recommended to have up to date Drug and Alcohol policies in place to meet their legal obligations. With increased homeworking, employers should check whether their Substance Misuse Policy adequately takes into account the change in circumstances and the standards that are expected of employees. Does it provide sufficient guidance and protection? Of course, it should clearly define what disciplinary or legal action will be taken should a breach be discovered.  

The “New Normal” is potentially going to be a “New Mine Field” for employers during the post-pandemic transition from office to home working. The allowances that the HSE may have afforded employers at the start of the pandemic have rapidly been replaced by the pre-COVID requirements to comply with all health and safety obligations to protect employees when working from home. This is the time to tackle it head-on. Resources spent now on anticipating the problems, assessing the risks and putting solutions in place not only make the lives of your employees safer, but could save you from costly and time-consuming litigation later on. 

CONTACT US

Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation.  If you have any specific questions regarding a dispute, please email  justice@griffin.law or call 01732 52 59 23.

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