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Homesick: The new wave of injury claims against employers arising from employees working from home

  • United Kingdom
  • Employment law
  • Employment litigation and dispute resolution
  • Health and safety
  • Insurance and reinsurance
  • Litigation and dispute management
  • Personal injury claims litigation

24-02-2021

There is emerging evidence that working from home for prolonged periods in the wake of Covid-19 is driving a new wave of claims against employers. The environment in which many employees now work has shifted from the ergonomically controlled, purpose built office to the employee’s lounge, kitchen table or bedroom. Sitting in cramped or unsuitable work spaces is leading to an increase in musculoskeletal disorders (MSD). And it is not just physical injuries that employers need to be concerned about. Working from home is having an impact on mental wellbeing. Employees feel unsupported and disconnected from their teams. The lack of physical separation between the office and home makes it harder to “switch off” and with no defined end to the working day, employees are working longer hours. Juggling home schooling and caring responsibilities is increasing pressure further. All of these challenges create the perfect recipe for stress, anxiety and depression.

In short, employers have lost control of the work environment yet the duty towards their employees who are working from home remains the same.

What are employers duties to employees working from home?

Employers have the same health and safety responsibilities for home workers as for any other employee. The Health and Safety at work Act 1974 imposes a duty on “every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees".

This duty extends to include the provision of information, instruction, training and supervision. Employers have duty to provide a working environment that is, so far as is reasonably practicable, without risks to health and adequate as regards facilities and arrangements, for their welfare at work. Employers are obliged to make risk assessments of the risks to health and safety that their employees are exposed whilst they are at work. These duties on employers extend to home working arrangements in relation to display screen equipment (DSE) and workstations assessments.

The common law mirrors these health and safety obligations and places employers under a duty to take reasonable care of the health and safety of employees in all the circumstances so as not to expose them to an unnecessary risk. The duty of care extends to the employees’ physical and mental health.

What should employers do to protect against the risk of injury claims by employees working from home?

Working from home is no longer a short term emergency measure but the new “normal”. The latest government guidance suggests that home working where possible is likely to continue into June. However, it is unlikely that attendance in offices will ever resume to pre pandemic levels. Employers must ensure that they have taken steps to avoid both physical and psychological injuries to their workforce.

In October 2020 the Health and Safety Executive (HSE) updated its guidance on home working arrangements having initially advised that there was no increased risk for those working at home temporarily. The guidance on protecting home workers can be found here. The key themes are:

  • regularly keeping in direct contact with employees;
  • the requirement for employers to provide advice to workers on how to carry out their own work station assessments;
  • encouraging regular breaks from display screen work;
  • meeting display screen equipment needs or encouraging other ways of creating a comfortable working environment; and
  • arranging regular discussions with employees to assess whether additional adjustments are required. For example, to mitigate the risks associated with pain or discomfort from unsuitable an workstation (MSD risks) or from working in isolation, longer hours, increased workload (mental health challenges).

Compliance with health and safety regulations and HSE guidance will not only mitigate the risk of injuries and therefore claims, but will also ensure that employers are well positioned to respond to any allegations of a breach of duty. Nonetheless, employers may need to go further to avoid liability for injury claims.

To achieve robust safety governance employers should ensure the control measures to manage the risks associated with home working are suitable and effective for their workforce. Employers should keep abreast of revisions to the guidance provided by the UK Government and the HSE. It is helpful to document these reviews to demonstrate a compliance checking mechanism is in place.

However, having clear policies in place only assist if those policies are implemented. Most injury claims against employers succeed not because of the absence of a policy or risk assessment but because of a failure to follow through on the actions required by employers and managers. It is important employers continue to engage and consult with their workforce to ensure employees are regularly reminded and signposted to any support available (e.g. occupational health, wellbeing support, resilience training). Regular check-ins with managers are important to ensure that employees feel supported in their work and have access to relevant assistance where necessary. Additionally, these regular discussions can identify any early warning signs of potential MSD or mental health issues, which can enable employers to introduce additional support or make reasonable adjustments to manage and reduce these risks before they potentially give rise to a claim.

Additional considerations and measures should be applied to those known to be vulnerable to MSD or mental health issues, either by reference to past problems or because their particular circumstances place them at higher risk.

When employees begin to return to the office, priority should be considered for those known to be finding working from home particularly challenging, be it due to their home working environment/set up or from a mental wellbeing perspective.

Conclusion

The risk to employees’ physical and mental health are substantially increased by working from home. This is driving an increase in MSD and occupational stress claims against employers. Through pro-active management of home working policies and timely reaction to reported concerns and issues from employees, employers can take steps to reduce the risks of personal injury claims arising in the future.

Our specialist legal advisers help employers navigate the risks posed by the workforce working from home and offer reviews of policies and advice on potential exposure to injury claims by employees.

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