As employers grapple with the immediate priority of their COVID-19 risk assessments and returning employees, many are thinking about the longer-term implications of the crisis on the future of work. In particular, many are considering how it will affect their health and safety duties. One issue which regularly comes up is working from home.
COVID-19 and working from home
In the short term, the COVID-19 crisis has precipitated an unprecedented surge in working from home. Looking ahead to the longer- term implications, many employers are expecting, at the very least, significant changes in employee preferences and working practices with respect to working from home.
These changes are already happening. In some cases, the changes are employee-led. Many of our clients, for example, are expecting employees who previously did not work from home to seek to do so after the crisis. Many are also expecting employees who did work from home to seek to do so far more than before. Whilst previously it was relatively easy for employers to refuse flexible working applications, it may be more difficult to refuse such requests when home working arrangements have been working successfully/ without complaint for the lengthy lockdown period.
In other cases, employer-led changes are being considered. For example, some employers are considering fundamental changes to their business models, even after the COVID-19 crisis has subsided, to move more employees to remote working and scale down their physical office presence.
So what does health and safety law say about home working?
There is surprisingly little specific safety regulation of working from home arrangements. This is mainly because health and safety law in the UK has built up over 100+ years on the basis of a distinct dividing line between workplaces and employees' homes. Most importantly, the law has developed on the basis of employers' duties starting and finishing in the workplace (i.e. a place controlled by the employer).
What does the law require employers to do for workers who wish to work from home?
Under the Health and Safety at Work Act 1974 (HSWA), employers are required to put in place systems of work which ensure, so far as is reasonably practicable, that employees may work without risk to their safety.
Specific good practice and regulator guidance has been developed to assist employers in understanding the practical implications of this duty. There is existing guidance on how to ensure the safety of employees working outside a workplace controlled by the employer (for example, lone workers and office workers who are set up to work from home).
For employers of office-based employees who wish to have the option of working from home, probably the most important existing requirement under safety law is the legal obligation on the employer under the Health and Safety (Visual Display Equipment) Regulations 2002 to arrange workstation assessments for its employees if they are working at a computer at home.
This can be a self assessment by employees rather than a third party assessment. There are HSE tools and commercially available software packages to help employers arrange these.
Other duties towards remote workers
Other areas which employers with remote workers have generally been advised to address include: ensuring good communications to avoid feelings of isolation in lone or remote workers; meeting needs of employees for specialist safety equipment where possible; and to ensure that line managers are trained to spot signs of stress and mental health issues in remote workers.
What about office equipment?
Whilst some employers choose to provide extensive equipment for occasional remote workers, it is not generally regarded as reasonably practicable for employers to kit out all occasional remote workers with a full set of office equipment for use in the home, (e.g. ergonomic chairs, desks and desk lighting).
That is not to say that employers have no duty to provide equipment to occasional remote workers. For example, if an employee was assessed as needing specialist equipment for safety reasons before remote working arrangements were established, it would seem clear that the employer should also provide such equipment for home use. Employers are encouraged by HSE guidance to provide specialised safety equipment "where possible".
HSE guidance also suggests that an employer should provide all "appropriate" equipment if remote working arrangements for a particular employee became permanent.
Will the nature of an employer's legal obligations change if its organisation undergoes a significant increase in home working levels?
Yes. Any material increase in home working and associated scaling down of activities in the office is likely to:
- change the risks facing the workforce; and
- decrease the range of risks which the employer is in a position to control directly.
If workers who previously worked from home only occasionally move to doing so permanently, it is likely that the employer will have a new duty to provide a fuller range of safety- related support and equipment.
What legal issues under health and safety legislation should an employer be thinking about in the event of a post-COVID-19 move to home working?
- Legal advice – what does the law require? Each employer's position will be different. In the absence of specific health and safety regulations governing working from home arrangements, understanding your legal obligations following a major change in working from home patterns in your workforce will involve an assessment of what is reasonably practicable in your case. Many of the decisions which will need to be taken (e.g. whether you should be providing new office equipment for all remote workers) will be commercially significant as well as carrying potential legal liability risk. Legal advice may be sensible to understand the scope of the legal duties before deciding upon and implementing a new policy on home working.
- Health and safety policies and procedures – there is a legal requirement under HSWA to maintain and keep updated a health and safety policy. If a new approach is decided upon with respect to home working, it is likely that the employer's written policies and procedures will need to be amended to reflect new arrangements.
- Risk assessments – if there are significant changes in the office environment (e.g. scaling down of activities in the office and a marked increase in the amount of home working), this is likely to lead to a legal requirement to review and update risk assessments in relation to office- based activities. There may also be a new requirement to produce fuller risk assessments addressing employee activities at home.
- Employee contracts – if there is to be a step change in your workforce's working from home arrangements, employee contracts will need to be amended to reflect any change in location if it is to be a permanent arrangement and, for example, to impose suitable obligations on employees with respect to safety arrangements in their own homes.