Getting people back to work safely AND Legally

Erin Shoesmith, Partner, Health & Safety for Addleshaw Goddard considers the legal duties employers have when it comes to protecting staff working from home

The Covid-19 crisis has, among other things, seen one of the largest ever experiments on home working. Millions of people are working from home who have either not done so before, or done so only sporadically. Recently, the government released its latest guidance on how to bring employees back to work safely, but the guidance remains that where possible, people should work from home. So what about their safety? What legal duties do employers have to ensure their workers remain safe even whilst working from their own homes?

The foundation of health and safety law in the UK is Health and Safety at Work Act 1974. This sets out the legal duties employers have towards their employees, as well as others affected by their business such as the general public. It also sets out the obligations that employees have to each other, the public, and themselves.

There are wide general duties on employers to ensure the safety of their employees at work, which involve providing equipment and systems of work that are safe, and also providing necessary information, instruction, training and supervision. Failure to do so is a criminal offence. The enforcing body is the Health and Safety Executive (HSE) or the Local Authority.

So where does this leave home working? The duties are the same. But clearly there are practical issues, more so during the pandemic. For example, employers must perform workplace risk assessments – including for home workers. These are a vital part of any health and safety regime, and employers are required to identify potential hazards, decide who might be harmed and how, evaluate the risks and decide on control measures, record the findings and implement them, and review the assessment and update if necessary. Common risks associated with home working include manual handling, use of work equipment at home, electrical equipment at home, fire safety, working with Display Screen Equipment (DSE) and lone working.

But in the midst of lockdown, there are challenges to carrying out assessments. And such assessments are not required for those working at home temporarily. So where does that leave employers?

The best guide is from the evidence given by the Chief Executive of the HSE to a parliamentary select committee on 11 May. She said that at first this was viewed as a temporary phase, meaning employers were not required to carry out full DSE checks or risk assessments. There should be guidance offered over eg taking breaks from screens and not spending too long hunched over a laptop, but otherwise there was little danger of falling foul of the law. However, as we move into a longer lasting phase of home working this will evolve. Employers may be required to provide or offer additional equipment and facilitate home working without risk of injury.

It will also be important to check in with employees regularly to ensure they feel their work can be done safely, that they have the right equipment and set-up (such as lighting, adjustable chairs, and potentially additional IT accoutrements like keyboard or mouse), and also their mental health. Employees working from home are lone-working without supervision and it is important to avert feelings of isolation or disconnection, to consider additional stress, and to offer mental health support. Regular conference or video calls will be important.

It is important to note that employees also have a duty to take care of their own health, which will involve discussing with managers any risks and any arrangements they feel should change in order to create good workspaces.

The regulator has been very clear that it is not acceptable to injure your workforce. It is therefore imperative that workers have the right equipment to work from home safely and the HSE has said it will take enforcement action where this is not done. But in the midst of a global crisis, companies that continue take employee welfare seriously, including homeworkers, are unlikely to fall foul of the law.