Much of the attention has been focussed on the health and safety risks associated with returning employees to the office while Covid-19 remains prevalent, but what are the risks associated with home working?
Employers have the same health and safety responsibilities for home workers as for any other employees, despite not being able to have the same level of supervision as they would in the workplace. Some of these duties are imposed by legislation, such as The Health and Safety at Work etc Act 1974, whereas others arise under the employment contract.
The scope of these responsibilities will vary, depending on the nature of the organisation and the role carried out by each employee.
The Health and Safety at Work etc Act 1974 requires employers to ensure, so far as reasonably practicable, the health, safety, and welfare of their employees, and to enact a written health and safety policy as to how this is to be achieved. This applies whether employees are working in the office or at home. So how can this duty be discharged with a remote workforce?
As a preliminary observation, we think that at this stage of the pandemic the responsibilities of employers for home workers are greater than they were at the beginning. Asking employees to put up with sub-optimal working arrangements for a couple of months during a national emergency may be justifiable, given the speed with which lockdown was imposed in March and the uncertainty around how long it would last. However, after nearly eight months employers really do need to step up and make sure everyone is working – whether in the office or at home – in a safe, healthy and sustainable way.
So here are the key steps we think employers should be taking:
Carry out a risk assessment
Employers are required to conduct a risk assessment of all work activities carried out by employees. This will enable employers to better understand the potential hazards arising from the way in which employees are expected to work, and how the risks of resulting harm can be mitigated. In contrast to the familiar and relatively straightforward “workstation assessment” in office life, due to the ongoing pandemic situation it is unlikely to be practical – and may be considered unlawful during the lockdown period – for employers to carry out a risk assessment at an employee’s home. As an alternative, employers should provide guidance on self-assessments which employees can conduct on their own home workstations.
An assessment should identify any workspace hazards (workstation ergonomics, temperature, ventilation and lighting), each of which should then be assessed in terms of its “risk potential”, namely the harm which could arise and the probability of the harm occurring. Additional measures to control the risk should be adopted where required. It would then be the employee’s responsibility to address any flaws in the home working space revealed by the assessment, for example by raising any issues with the facilities manager or other appropriate person. Once the home workplace is passed as safe, it is the responsibility of the employee to make sure it is kept safe and that they take reasonable care of their health and safety.
In order for them to carry out their own risk assessments remotely, our view is that an electronic questionnaire (in a form similar to this example produced by the Health & Safety Executive) should be made available to all employees.
Employers should be aware that the risks and potential hazards of homeworking, particularly during lockdown, will not necessarily be of the same nature as those which arise in the office. Employers should think about whether there is a greater likelihood of psychiatric injury arising from stress, isolation or exhaustion. This may be the case if employees are struggling to strike the right work/life balance, or are not taking holidays, or are not responding constructively to feedback or suggestions. These risks are difficult to assess on a case-by-case basis.
Don’t forget to consult
The HR or facilities team should remain in touch with employees to check that they have completed the risk assessment, to discuss the arrangements in place for working from home and to allow them to raise any issues with their system of work at home.
Provide employees with necessary equipment
Where issues with equipment are raised by the risk assessment, employers should consider what they can provide to aid efficient and safe homeworking. Absent any obligations arising in relation to disabled employees, firms are in general not required by to provide their employees with all of their own equipment as employees will already have provided the basics such as a room to work in and a table or desk etc.
We consider that the employer’s role is to supplement an employee’s home workstation where necessary to ensure a safe working environment and a safe system of work. It is not necessary to provide a brand new home office, but if employees require dedicated equipment for work such as a mouse, keyboard or headset we believe that it is the responsibility of the employer to provide this. Employers should keep a record of all equipment provided to employees, which may include small items purchased new or items such as ergonomic chairs or height-adjustable desks which have been transported from the office. Any equipment provided will be the employer’s property and should be returned to the employer at its request or on termination of employment. There may well be tax consequences if items are purchased for an employee’s home office which do not remain the employer’s property.
For some employees, working from home will be an isolating experience. It is in employers’ interests to make sure that their workforce is healthy and able to work. Checking in with employees after they have completed their risk assessment and simply asking how they are could be an effective way of supporting employees’ mental health.
In addition, firms should consider how they can keep up contact and engagement with their workforce. Here are some steps employers might consider as a way of mitigating the effects of isolated working and the mental health risks it can pose:
Where employees are facing mental health issues, the HR team should have a toolkit of intervention measures they can use to assist employees in crisis. This could include a referral to occupational health or a third-party healthcare provider, available to individual employees on a discretionary basis.
What about paying for heating or Wi-Fi costs?
Employees may have increased costs due to working from home but are likely to make savings elsewhere (the most obvious example being the cost of commuting). It is up to individual employers whether they choose to reimburse a proportion of working from home costs, such as Wi-Fi, home phone or broadband costs. This is not obligatory and will depend on the employer’s homeworking policy.
Employers can give employees a tax-free allowance of up to £300 a year to cover increased costs for working from home, but only where those costs are incurred wholly and exclusively for work purposes. For example, internet costs may be hard to claim because the household’s internet provision will be for a mix of private and business use. Employees can also claim the tax relief directly from HMRC.
Preparing for the eventual return to the office
Employment contracts will invariably specify the employee’s normal place of work as the firm’s premises. Now that employees have moved to homeworking on a temporary basis during the pandemic, we consider that there is a risk that there will have been an express or implied variation of this term of the contract, although in many cases there is little or no formal record of the changes. If so, this may restrict an employer’s ability to require employees to return to the office as and when the government guidance is relaxed.
For example, if employees are requested to return to the office at short notice, they may argue that this a breach of their employment contracts. In order to mitigate the risk of allegations of indirect discrimination, it’s equally important to consider whether certain groups sharing a protected characteristic (such as age, sex or disability) will be disadvantaged by a wholesale return to the office. For example, this could be the case where the childcare obligations of female employees make a swift return to full-time working in the office unfeasible, or where disabled employees are put at unnecessary risk by returning. Employers should be careful to listen to any concerns raised at an early stage.
There may also be a case for making it clear to employees that working from home on a temporary basis during the pandemic does not alter their place of work under the employment contract once the public health emergency is over.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak to your usual Fox Williams contact.
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