“Hi Honey, I’m (still) home!” Legal considerations for employees working from home

With flexible working arrangements becoming increasingly common post-Covid, employers should continue to be alive to the consequences of these arrangements and consider what steps they should take to address these implications. 

The pros and cons of working from home have been well documented.  Working from home can enable flexibility and freedom in how employees work, potentially increase productivity and provide business continuity during crises.  However, working from home can also introduce unique risks and implications, in terms of health and safety, mental well-being, and privacy and data protection.  

Who is responsible for health and safety for employees working from home?

Under the Health and Safety at Work Act 2015 (HSWA), employers have a general duty to ensure the health and safety of all workers, so far as reasonably practicable, while those workers are carrying out work.  This captures employees who are working from home, and means that health and safety obligations are still owed to employees, even where those employees are working remotely.

What is “reasonably practicable” is context specific.  When making this assessment, the hazard, the likelihood of harm, and any potential consequences of that harm should be considered.  Where there is a high likelihood of harm and potentially significant consequences of that harm, the employer is expected to take greater steps to eliminate or minimise the risk of that harm occurring.

Employees also have a duty under HSWA to take reasonable care to keep themselves safe and healthy while working from home.  This is particularly important for remote workers, given that employers naturally have little ability to manage or control the home environment or their employees at home.  Employees are also required to follow any reasonable instruction or policy about their health and safety given by their employer.

What are the health and safety risks for employees working remotely and what steps should employers take?

When employees are on-site, an employer can (and should) provide employees with an appropriate workstation, and all relevant and necessary equipment.  However, when employees work from home, it is more common for employees to work in unsuitable (and often haphazard) workstations and environments. 

As a result, employees working remotely may be more at risk of repetitive strain injuries (RSI) or muscle strain.  Haphazard workstations and environments also increase the risk of tripping due to unsecured wires or uneven floors, fire hazards from overloading sockets and eye problems from dim lighting or sun glare on monitors or laptops.

Employers could consider the following steps to minimise these risks:

• Provide advice and guidance on how staff can set up a healthy home workstation, and how they can recognise and monitor for symptoms of work-related health problems. Effective ways that the employer might do this include having home workstation checklists, holding a seminar, or arranging home workstation assessments with an in-house expert or external consultant.

• Provide home workstation furniture (standing desk or additional monitors) and accessories (keyboards and mouses), or financial support for employees to organise this themselves.

• Monitor employees’ health and well-being to make sure that risk control measures are effective.

• Use procedures and reporting systems to identify and control risks of work-related discomfort or incidents for employees working from home. 

If employers are unable to ensure the health and safety of their employees by these or similar means or the costs of doing so are prohibitive they may want to reconsider their work from home offering. 

Should employers take extra steps for the mental health and well-being for employees working remotely?

As many have experienced after the various Covid-19 lockdowns, working from home often blurs the boundaries between personal and work life.  This often manifests in seemingly small ways but can snowball to create or add to mental health and safety risks.  For example, employees may not take any, or take fewer, rest and meal breaks, work longer hours, or find themselves unable to “switch off” when they work from home.  This can be problematic as it places employees at increased risk of fatigue, burn out and general stress.  Employees who work from home are also more likely to suffer from loneliness and social isolation.

Whilst there is no one-size-fits-all approach to mental health and well-being, an important way for employers to ensure the health and safety of their remote employees is to facilitate discussion and consider any feedback provided by the employees on key changes that they would like to see.

Aside from general consultation, employers can take small steps that make a big difference to the well-being of their employees:

• Regular phone calls or video calls to check in and catch up with your remote employees. This could be effective as a casual and informal chat in the form of a daily virtual coffee catch up, with the goal being to help build and maintain social connections.

• Establish common boundaries around when it is acceptable to contact remote employees (including by email) to help ensure work-life balance. For example, rather than sending an email on a Friday at 7:00pm, encourage employees to schedule that email for Monday morning (where it can be helped!).

• Discuss and agree on deadlines in advance and monitor workflow.

• Provide training to managers or supervisors on how to identify fatigue, burn out and stress in employees, and what steps to take. Encourage employees to communicate with their managers or supervisors when they are feeling this way, so that proactive solutions can be found.

• Encourage employees to take breaks throughout the day.

• Consider how mental health and well-being initiatives for office or on-site workers could be adapted to apply to those working remotely.

What other employment law obligations should employers consider?

Employers have a legal obligation under the Employment Relations Act 2000 to provide a process for any employee to request a flexible working arrangement.  This obligation applies to any employee of any type and for any reason.   Accordingly, employers ought to consider other legal implications for employees working from home as a request may come across their desks sooner rather than later.  Key action points are:

• Consider data protections – work computers should be secured and protected with security programs and passwords, and may include two-factor password authentication. Consider whether it is appropriate for employees to use their personal computer to hold client / business information or whether a separate work computer should be provided.  Consider whether domestic grade data networks are appropriate for handling confidential information or should specialist advice about data networks security be sought.

• Ensure working arrangements are documented – this may include incorporating hybrid or remote working language into offer letters and employment agreements or formalising arrangements through working from home policies to ensure all parties are on the same page.

• Carefully consider requests for cross-border remote working – there may be tax and jurisdiction-specific employment law implications for this employee and specific legal advice should be sought for each employee.

• Ensure diversity and inclusion policies account for remote working employees – for example, how will you ensure that employees working from home are offered the same mentoring and career development opportunities? Does your work from home policy consider gender and ethnic biases?

• Consider privacy law – for example, how will personal information be stored and protected to ensure that data is not breached or lost?

While remote working arrangements continue to increase in viability and popularity, employers should carefully consider what their legal obligations are to remote workers, and how they plan to meet these obligations and ensure the physical safety and mental well-being of employees. 

As a girl from Kansas once said, “There’s no place like home” and it seems like employees agree. 

If you have any questions about working from home, please get in touch with our employment/health and safety team or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.