The UK Government has placed the country on official lockdown from 23 March 2020. Under the new rules, members of the public must not leave their house except to:
- Travel to and from work if impossible to work from home
- Shop for essentials, as infrequently as possible
- Exercise outdoors once per day, alone or with household members
- Receive medical treatment or provide care
Further guidance followed, advising: “travelling to and from work [is permitted], but only where this absolutely cannot be done from home.”
Homeworking, however, raises a number of employment law challenges for employers.
Employers should consider staffing requirements and how many people are needed to be in attendance on the premises. Those that can do their job from home should be supported in doing so. Workers may also opt to take holiday or unpaid leave.
Employers will also need to plan for cover when workers fall ill to avoid insufficient cover. This may require workplace attendance or availability to work from home at short notice.
Refusing to allow employees to work from home or to stay at home, and taking disciplinary action for not attending work, could expose the company to a tribunal claim if the employee can show a genuine health and safety risk from being required to attend work.
It is also important to act consistently in your treatment of employees, and to be fair and transparent in your decision making. Note that vulnerable workers such as pregnant employees continue to be protected by law and should be given special consideration.
There is no legal obligation on an employer to provide the equipment necessary for homeworking, although it would be sensible for the employer to pay for and provide equipment if the employee cannot work otherwise.
Employee health & safety duties for homeworking
Even while working from home, employers remain under a duty of care to ensure the health and wellbeing of their employees.
This includes providing and maintaining safe work systems and equipment at home, the supply of appropriate first aid provision (although generally not extensive), reporting serious injuries or accidents and in relation to particular mental health challenges for home workers.
With most workers relying on computer equipment to work from home, regardless of whether it belongs to the worker or the employer, particular obligations may arise under The Health and Safety (Display Screen Equipment) Regulations 1992. The regulations apply to the use of desktops, laptops, tablets and other digital devices used for prolonged periods.
The DSE Regulations require employers to carry out a suitable and sufficient assessment to identify any health and safety risks for individuals who regularly use display screen equipment (“DSE”) as a significant part of their usual work and to reduce the risks identified to the lowest extent reasonably practicable.
For employees working from home, albeit for a temporary period, employers should consider how best to conduct a risk assessment.
While it is unlikely that employers will be required to conduct an assessment to the same degree as for office-working, employers should ensure the home environment is adequately assessed and take measures to control risks of the work activities performed by their employees at home.
A practical solution is for workers to complete their own risk assessment while at home. Employers could provide a checklist to work through, including information on causes of DSE related problems such as the importance of posture, how to make equipment adjustments, the need to take breaks and to change activity, and arrangements for reporting problems with workstations or ill-health symptoms.
Where homeworking is only for short periods, an employer may take the position that non-compliance with a full risk assessment would not have an adverse effect on health and safety. However, employers should make it clear that employees must keep them informed of any particular concerns or issues that arise during any period of homeworking.
Reasonable adjustments for disabled workers
If an employee is working from home has a disability, the provision of equipment or reimbursement of equipment expenses may be required as a ‘reasonable adjustment’ under the Equality Act 2010.
It is an offence to breach an employer’s health and safety duties, and employers should be aware they risk a civil claim if an employee is injured as a result of their work and employer’s negligence.
However, these risks have to be considered against the possible risks to the employee’s health by requiring them to attend their place of against government advice.
In practice, this will require employers and employees to show flexibility in finding a workable solution.
Restricting work-related travel
Under current guidance, and to meet their health and safety obligations, employers should review all work-related travel to identify what is nonessential and could be postponed or substituted by telephone or video-conference calls.
Conducting grievances & disciplinaries remotely
Under the ACAS Code of Practice, employers are under a duty to handle all disciplinary and grievance procedures fairly and without reasonable delay. This may require the employer to proceed with the process by holding meetings remotely.
This means if an employee requests disciplinary proceedings to be delayed until after the crisis and once they can resume work in their usual workplace, the employer does not necessarily have to agree.
When deciding how to proceed, consideration should be given to issues such as whether the employer can carry out a full and fair investigation away from the workplace, how many hearings will be held (by video conference?), whether the employee is to be accompanied and how to ensure confidentiality.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
This article first appeared on our sister publication www.lawble.co.uk