Homeworking and employer’s health and safety duties

More and more staff are now working from home and not just because of the pandemic.

There was a growing trend towards home working in any event, but the onset of Covid-19 has obviously sped it all up.

The challenge for employers lies not just in ensuring their employees are healthy, comfortable, engaged and productive but also complying with their health and safety duties whilst not being able to physically monitor employees and their workspace.

Employer’s obligations and the law on health and safety

Employers have the same health and safety duties under law to homeworkers as they do to office workers.

These duties apply not only to employees but also contractors e.g. freelancers who work for you.

They also cover mental safety as well as physical.

Employers need to identify, assess and control risks arising from home working set-ups as part of their overarching health and safety risk assessment and health and safety obligations.

Safety, Health and Welfare at Work Act 2005 – Section 8

This Act imposes obligations on employers to, as far as reasonably practicable, ensure the health, safety and welfare of all employees.

The Health and Safety Authority (HSA) have a useful guide to help you

The Safety, Health and Welfare at Work (General Application) Regulations 2007

These regulations make clear the meaning of ‘Display Screen Equipment’ and ‘Workstation’ by providing definitions and direct information on what employer’s obligations are.

The key risk here is muscular skeletal injuries due to poor workstation set up.

These injuries may build over time and not be apparent early on.

Employees may be able to make claims many months on from when they first start working in a specific set-up that causes these injuries – and in some cases, the extent of the injury can be quite debilitating.

These regulations also state that employers must ensure the health and safety compliance of work equipment when selecting it.

The regulations require you to ensure equipment that employees are using to work from home is suitable, and that health and safety is considered when selecting it.

Employers must also ensure the suitability of equipment when giving employees the ability to choose it for themselves.

Employers must maintain this equipment and ensure it remains safe and properly used (and that employees are educated as to what proper use and positioning means) as part of a regular health and safety equipment maintenance programme.

Check out the HSA guide on use of work equipment here

NB: Workstation assessments must be carried out on any employee who spends 1 or more continuous hours per day at their workstation. An assessment should be undertaken at least every 2 years.

Where should employers start in complying with their health and safety obligations?

A 3-stage approach is recommended:

1. Do the risk assessment.

Physical inspections are unlikely to be possible and neither are they strictly essential right now in the view of many experts.

Instead, run through with your employees a sensible review framework that contains all the key elements you should be covering.

Use your staffs’ views to inform your risk assessment.

HSA has a great homeworking checklist to help you.

They also have some great guidance about how best to protect homeworkers and keep them safe.

This is definitely worth looking at and adapting to your own position.

Find out more information by visiting their guidance for homeworkers here

2. Update your policies

Next, use the results of your findings to update your homeworking and health and safety policies.

This will ensure that you can show you’ve captured in writing the results and actions arising from your risk assessment.

3. Communicate changes

Communicate any changes to your staff, train those needed to be trained to help you monitor them, and ensure all staff have a channel of communication to continue raising concerns, asking questions and/or getting the right support, on an ongoing basis.

What should go into the risk assessment?

HSA has identified the three main risks to be: stress and mental ill-health; lone working; and homeworking equipment and environment.

Once you have identified these risks, you’ll need to cover in your risk assessment how you will control them for each homeworking employee.

In terms of what employers are expected to do and how far they must go in fulfilling their duty, their legal duty is to do what’s reasonably practicable, meaning what’s reasonable taking into account their budget, the number of staff homeworking and the amount of time these staff members are working from home (1 day a week vs fulltime, for example).

Document all of this and your conclusions, along with the reasonable action that you have taken.

This should be sufficient to discharge your obligations.

What are employers’ obligations?

This depends on whether homeworking is on a temporary or on a long-term basis.

The HSA FAQs are super helpful in helping you understand the difference in your legal obligations for each type of worker – those temporarily working from home and those permanently doing so.

Temporary homeworking

No workstation assessment is required, but employees must be provided with guidance on how to safely set up their own environment.

There’s a great FAQ section on the HSA website that you can read share with your staff to help them gauge what they need and how to adjust what they’re using.

Often most of what’s needed is an adjustment to how staff are working, as opposed to anything complex, expensive or requiring a great deal of configuration or expert installation.

Employers must try to meet work equipment needs where possible.

But for large items like office chairs, employers can ask staff to experiment/compensate with e.g. cushions to make a chair more comfortable, a low (stable) stool on a table to help create a stand up working environment (perhaps accompanied by a good, cost-effective standing mat to help ease joint pressure), etc.

Those who start with this set up temporarily, but for whom it may become a more permanent feature of their working practices, will need to be carefully monitored as the longer they are doing this, the more likely they are to fall into the permanent/long-term homeworker category under health and safety law.

Once that happens, the employer’s obligations are a lot more onerous.

Long-term homeworking

Who is a long-term homeworker and when does temporary become long-term?

Unfortunately, this is not that clear, and there has been no real guidance on this from the HSA.

Many experts are advising on the basis that ‘long term’ is likely to be someone working from home on an agreed regular basis, even if it’s only 1 day a week, and regardless of whether that specific arrangement is actually set out in their contract.

However, if it’s only occasional homeworking and far more spontaneous, the employee is much less likely to be considered a ‘long-term homeworker’.

Government guidance mandating or recommending that staff work from home means that employees are likely to be treated as being under long-term homeworking arrangements rather than temporary ones.

This is simply due to the duration of the period during which staff have been working remotely – and the health and safety risks to them that may well have sprung from this necessity.

This means that the obligations for long-term homeworking are likely to apply to these remote working arrangements – meaning that employers should be much more proactive and involved in these assessments going forward and unless and until each homeworking member of staff returns to workplace working.

What are the employer’s obligations for long-term homeworkers?

In these circumstances, employers must conduct a home workstation assessment on their employee’s home office/homeworking environment and there are a very prescriptive set of requirements set out in schedule 2 at the end of the Health and Safety (Display Screen Equipment) Regulations 1992 (the ‘DSE regs’) that employers must comply with.

What equipment must you apply as a legal minimum?

There is no general legal obligation for an employer to pay for homeworking equipment.

However, the employer does need to ensure that the employee has the equipment that they need to facilitate employees working from home.

This in practice often means that employers will need to pay for equipment if employees resist paying or can’t afford to do so.

Employers may wish to do this by setting a fixed sum budget to buy work equipment for use at home, as long as employees provide receipts.

Employers can also provide equipment that had ordinarily been at their office such as chairs, footrests and desk lamps.

Working equipment and set-ups from home

Providing a laptop is not enough.

There must be a display screen and it needs to be one that accommodates certain criteria including tilt, swivel and brightness adjustment.

Employers will also need to ensure that employees working from home also have the following:

• A separate keyboard is also needed– i.e. a laptop keyboard does not qualify here.
• Work surface– workers should have the required set up at home – only a free desk to work on is required.
• Seating arrangements– must be stable and adjustable. The height may be able to be altered by cushions to support their back and posture.
• Adequate lighting and heating too. A dim shed that is damp and cold will not fit the bill!

In practice, employers tend to meet this duty by providing a basic homeworking equipment package and a training resource on how to set up correctly, as well as instructions about what to do if employees need more or do not have what you need.

Something that is worth emphasising at this point is that the risks of most muscular skeletal injuries can be addressed through correct positioning of existing equipment.

Actually, it is rare for new equipment to be needed and where it is needed – i.e. a separate keyboard needs to be acquired or a desk lamp or appropriate chair is required, that equipment does not need to be expensive/specialist ergonomic items.

It just needs to be fit for purpose and meet the Health and Safety regulations.

The work chair dilemma

Often, an office/working chair is the biggest challenge.

Does a flexi-working employee need one chair for home and one chair while they are in the office?

Probably, if they are working from home regularly, though employers can take a reasonably pragmatic approach here: depending on length of homeworking period, an employee could be given a cheaper, but nonetheless suitable chair for a shorter period of time spent at home, and a fancier one for the longer period of the week in which they attend the workplace – or vice versa, if relevant.

Should you pay for it or expect your employees to pay?

Many employers simply set a budget and let homeworking employees choose what they consider suitable and take delivery of it directly.

HOWEVER, be aware that this may be considered a benefit – and there are tax implications related to employee benefits.

Could a voucher or budget to buy their preferred equipment be considered a benefit?

This needs careful thought and it’s good to take advice on what you’re planning – otherwise employees could find themselves being taxed on the ‘benefit’ they’re receiving.

Just because something is a legal requirement, it does not necessarily avoid benefit status.

If the chair is being delivered to the employee’s homeworking environment, does the employer need to provide a person to ensure the chair is set up properly?

Most office chair delivery providers offer the option of someone setting it up for the employee at the point it is delivered.

Some chairs will not need any setting up.

Once delivery has been acknowledged, employers should then ask if the employee is happy with their set up and someone trained on health and safety in the business should validate that it all seems in order.

A record should then be made of this to fulfil the employer’s overarching and ongoing risk assessment responsibility.

The home workstation assessment

For full time employees, the best thing to do here is probably to give employees a homeworking equipment package.

Employers should then direct employees to the HSA website and give employees access to the employer’s homeworking and health and safety policies.

Employees should then carry out their own self-assessments (with support from someone qualified/trained, as needed) and report any issues.

This practical workstation checklist by HSA may help employees carry out their own assessment.

Part-time homeworkers will probably need to do this twice – for their office set up and for their one at home.

Managers should then check in with employees to ensure they’re happy with their setup.

If anyone identifies themselves as high risk, then can get in an ergonomist consultant to help.

To cover yourself as an employer, document all activity, conclusions and diarise regular reviews.

Going forward, organisations should extend this employee self-assessment approach to the office environment too, i.e. the trend is to no longer have someone from HR or facilities to come and assess an employee’s set-up in the workplace.

Instead, employees can do exactly the same as homeworkers, be given the same package and training and support (there can be no discrimination) and the employee conducts their own assessment of their set-up.

The employer then reacts to what the employee reports and addresses things if needed.

A complete record of all activity is kept on file.

To sum up: some final tips…

If you do decide to use someone external to assess higher risk individuals, there is typically a choice of external provider:

• those who do the risk assessment for free and only charge if equipment is recommended (they get a margin from any equipment sold and that constitutes their fee), and
• those who charge for the assessment irrespective of the outcome.

We recommend the latter as this means that there is no conflict, and the assessment is fully focused on what’s needed, rather than what can be sold to keep a margin worth the effort.

So it’s better to just pay someone for the assessment otherwise you could find lot of new equipment being bought that might not actually be needed.

Make sure also that employees are taking proper breaks and moving around, so they’re not sat down staring at a screen for very long hours.

Remember that good ergonomics is usually about adjusting existing equipment, rather than buying a load of new and/or expensive stuff (it’s more sustainable too!).