Since the start of the COVID-19 pandemic, many businesses were required to close their workplaces and employees had to work from home where possible. Now that the Government has shared its roadmap for easing the UK out of lockdown, employers will be starting to consider the best working arrangements for staff. With an increasing number of businesses announcing hybrid working models whereby employees are expected to work from home for a few days a week, the home-office will become a permanent feature for many. In fact, a survey by the Institute of Directors (IoD) found that more than half of businesses plan on reducing their long-term use of workplaces.

Whether the workforce is working from home either part-time or full-time, employers have a duty of care for the health and safety of their staff in both environments. What steps can employers take to ensure they are complying with the law and reduce the risks of workplace injuries?

Our Insurance and Health partner Cordelia Rushby answers the key questions in this article.

Who is responsible for protecting employees from workplace injuries?

An employer has a common law duty of care to take reasonable steps to prevent foreseeable harm occurring to its employees. The Health and Safety at Work Act 1974 imposes a similar statutory duty on employers to ensure the health, safety and welfare of every employee “in so far as is reasonably practicable”. This duty applies to all employees, including homeworkers.

What does the duty of care cover?

The duty requires employers to safeguard the physical and mental health of workers.

In a post-COVID climate, examples would include taking action to avoid the risk of:

  • Musculoskeletal injuries arising out of poorly set up workstations at home.
  • Lifting injuries arising out reduced staffing/untrained staff managing the supply of products.
  • Anxiety or depression arising out of poorly managed workloads at home, or in the office where managers and mentors may only be in attendance a few days a week.
  • Increased risk exposure to COVID due to poorly managed office environments. Even when COVID restrictions are lifted, the necessity to have an office premises risk assessment that takes into account and mitigates the known risks of COVID in a proportionate and reasonable manner will remain. It is, after all, unlikely that COVID will not return at some point and it is now a known risk and, as such, must be monitored and addressed.

What are the legal risks for employers who do not comply?

Employers have the same liability for accident and injury to homeworkers as office workers.

If an employer fails to take reasonable steps to safeguard an employee’s health and as a result they suffer an injury, the employer could be exposed to a claim for personal injury damages, a visit from the HSE (Health and Safety Executive) with the potential for regulatory fines, and other enforcement measures. This is in addition to a loss of productivity from the injured worker, loss of senior management time arising out of the necessity to manage the injury and claim, and finally the possibility that when they are next renewing their employer’s liability policy, their premium will increase as a result of claims.

Could employers be facing legal claims after the pandemic?

There is a real risk of future claims because few employers have actively carried out homeworking risk assessments and a surprising number have not prepared COVID-19 premises risk assessments.

Over the last decade with various policy changes, the HSE made increasingly few external visits and inspections. As a result, many businesses are unfamiliar with HSE spot checks and the very wide-ranging powers of inspectors to inspect documentation, interview staff, and issue improvement and prohibition notices.

However, post-COVID, they are using external consultants to boost inspector numbers and have significantly increased the number of spot checks to all types of business premises in order to check that COVID-secure measures have been implemented. These can be unannounced visits, during which the HSE have said they will provide advice and guidance, but where they find a business is not compliant, resulting in significant risks to health and safety, they can take immediate action including shutting down premises.

What can employers do to reduce the risk?

In order to reduce workplace risk, you first have to identify it.

The MHSWR (Management of Health and Safety at Work Regulations) requires an employer to carry out risk assessments relating to known risks.

HR need to work with compliance officers to undertake a full workplace audit, identifying what work is being done and where.

If office premises are to be re-opened, a COVID-19 premises risk assessment must be done and communicated to staff and if there are in excess of 50 employees, it should be published on the company website.

Homeworking is not new. Homeworkers were previously included in a “Lone working” guide published by the HSE. The more recently published HSE guide “Protect homeworkers” is a good place to start. Employers should:

  • assess the risk of homeworking;
  • consider what work activity will be done and for how long;
  • consider whether it can be done safely;
  • consider what equipment and training are required;
  • consider how they will keep in touch and supervise; and
  • consider what control measures are needed to protect staff.

If a business can show that it has actively managed a risk, communicated the risk mitigation measures to staff, monitored the effectiveness of the preventative measures, and adapted procedures to suit new challenges, it is likely they will be able to prove that they have taken “reasonable steps” to prevent the foreseeable risk of harm to employees. Employers will also be able to defend a civil claim for damages and prove to the HSE that they have complied with their regulatory obligations.

If you have any questions on the issues raised in this article, you would like assistance with post-COVID policies and risk assessments, or you are facing a potential claim which you would like to discuss in more detail, please contact Cordelia Rushby.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.