Without doubt – and even when the current disruption caused by Covid-19 abates – a much greater proportion of employees will be fulfilling more of their duties from home. But how – if at all – have employers' obligations to protect the health and safety of their employees changed? If an employer is liable for injuries sustained by a staff member who slips on a hazardous computer cable running up the middle of the office, is it responsible for similar risk posed to an employee who is working from a table in the kitchen or on the patio in the back garden?
Strictly speaking, the answer is yes.
The legislation governing safety at work – the Safety, Health and Welfare at Work Act 2005 – applies to all workplaces, regardless of where they exist. If the ongoing threat of coronavirus dictates that an employee not attend the normal workplace, employers will have to ensure, as far as is reasonably practicable, that the duties are carried out safely in other locations including the home.
But the degree to which that duty is actually enforced will depend on the extent of the efforts made by the employer to ensure that home workplaces are safe. This in turn will oblige employers to engage in consultation with their employees to satisfy themselves as best they can, that the risk of injury is minimised.
Employers would be wise to consult with their insurers to avoid any indemnity problems arising down the line.
Hazards
But what typically should employers be expected to do in order to fulfil their statutory obligations under section 8 of the Act to protect the safety of staff working from home?
– Employers should reassure staff that the Act applies in full and that the decision to pursue working remotely was taken arising from hazards posed by the coronavirus.
– Employers, as best they can, must appraise themselves of the conditions obtaining in their employees’ homes. Are there particular dangers? Do staff have enough space? Do they have proper seating, light, water, ventilation and equipment, smoke alarms, first aid? Have trip hazards and excess clutter been identified/reduced? Do staff have to supervise dependents, pets? Can employees take regular breaks including screen and posture breaks to reduce repetitive strain?
– Technology, including hardware and software, provided to employees must be reliable, virus-protected and retained safely. Devices need to be encrypted, and multifactor authentication and strong passwords should be used. Only work email accounts, trusted company networks and other secure back-up systems should be used.
– Employers need to satisfy themselves that data can be stored securely in line with the GDPR rules. Secure shredding needs to be facilitated.
– Employers must establish protocols around contact with employees. Particular times and methods should be prescribed and adhered to. Staff should be encouraged to take appropriate breaks for meals and rest in line with entitlements under the Organisation of Working Time Act 1997.
– Employers should respond appropriately to the heightened risk of stress, anxiety and objective feelings of abandonment/isolation. Contact between colleagues should be encouraged.
– Employers need to have particular regard for staff in specific risk groups, such as older workers, pregnant workers, workers with physical disabilities or workers who are caring for other people at home. The needs of lone workers also need to be considered.
– Staff should be reminded that, in addition to the obligations of the employers, they too are under a duty to protect their own safety as required under section 13 of the Act. They must cooperate with their employers, not work under the influence of intoxicants even if they are working from home. They must report any perceived threats to their health and safety.
The Health & Safety Authority may prosecute employers found to be in breach of their obligations. But any employer who is judged to have made a reasonable effort to consult with its employees in an attempt to mitigate risk is likely to meet with a sympathetic response. The authority has published a useful guide on how the Act might be complied with in home-working context.
Mark O'Connell is a practising barrister specialising in employment law.
