How the changing world of work is likely to impact on the way employers need to carry out their duties to safeguard their employees' physical and mental health and safety

Home and remote working have now become a fact of life for many of us, and with access to reliable technology, virtual meetings and doing business through email and telephone calls from home have become the new normal. However, what employers can overlook is that regardless of where their staff are working, they are still owed a duty of care to ensure that working conditions and arrangements are safe and conducive to good health.

The Health and Safety at Work etc Act 1974 requires an employer to ensure that, so far as reasonably practicable, the health, safety and welfare of employees is maintained. That is a duty which exists regardless of whether the employee is working on a factory floor, behind the wheel or a desk in the office, or homeworking from their kitchen table. Regulations also mean employers need to carry out a suitable risk assessment of workplaces including a homeworking environment. Realistically, for most homeworkers the least an employer should offer is a workstation risk assessment, done online to ensure that appropriate equipment is in place and being used correctly to make working from home safe and easy.

This might include provision of an additional screen, correct seating to ensure posture is ergonomically correct, proper lighting, and access to the right technology to facilitate safe and efficient working.

Mental health considerations

Ensuring physical wellbeing is certainly one aspect of an employer's legal duties, but mental health is also a major consideration. In 2004, the Health & Safety Executive (HSE) published a recommended approach to tackling stress at work, and this included what are called its management standards. This identified six key risk factors for work related stress and anxiety, and encouraged a systematic approach to tackling this problem. Even before lockdown forced so many of us to start working remotely, stress was estimated to cost the UK economy £5 billion annually through sickness absence and poor productivity. These risk factors include things like quality of relationships at work, understanding of one's role, poor communications and the impact of change.

When correctly managed, remote working can work extremely well, but it does have its downsides for mental health and it is easy to see how these HSE risk factors might come into play in a homeworking situation. Isolation can be a real problem and practical difficulties in getting support from peers and managers can also cause problems. Whereas before an employee might lean over to speak to a colleague and ask a simple technical question or to get a second opinion, that now requires a call to be set up or made, or an email to be drafted and sent. Chances are, many employees simply won't bother if it can't be done spontaneously and will soldier on. After a while, working in that way can prove demoralising and can have a direct impact on the quality of the work delivered, with associated risks for the business.

Unless an employer is particularly disciplined about having regular sessions with staff working remotely, it may be difficult to judge when support is needed or indeed at what point an employee's mental health may be adversely affected as a result of isolation. Video calls are certainly useful, but it is difficult to detect some of the telltale signs of stress and poor mental health in the same way as is possible when meeting face to face. In a workplace where you might see somebody several times a day it's much easier to pick up on these signs than it might be on an occasional call when a member of staff might more easily disguise how they are feeling.

From a legal perspective, if an employer does not do as much as it reasonably can to monitor staff working remotely and take steps to ensure employees are supported, that could give rise to legal claims either for negligence in more extreme cases which result in some form of psychiatric injury, or through the Employment Tribunal should they become unwell, and are ultimately dismissed for poor health or develop some form of disability. Such situations can become time consuming to manage, and if they develop into claims, expensive to deal with. An employee who is not performing at their best will also have reduced productivity, affecting the profitability and efficiency of their employer.

Family and wider issues

Another area of concern for both employers and employees working remotely relates to the problem of boundaries between home and working life. It can become difficult for employees to “switch off” if they are not disciplined in the way they approach their work, or if the work they do prevents this. It may be tough to juggle work with home life if children are at home, they are homeschooling or unable to attend nursery. Employers need to allow staff to work more flexibly so they can juggle these priorities. If an employer doesn't do this and then tries to manage performance, impose unrealistic targets or objectives and then take action, this may be unjustified if it fails to take into account mitigating circumstances. All of these issues could then play into a resulting legal claim before an Employment Tribunal, with significant consequences for the employer.

In recent weeks we have seen research published by the Chartered Institute of Personnel & Development and recruitment business Adecco which suggests more than a third of employers in the UK plan to make redundancies in the next few months. We've also seen the Office for National Statistics confirm that the UK is now officially in recession following a 20% shrinking in the economy in the second quarter of this year. These figures are frightening for an employee working remotely, or worse on furlough. They will be wondering if they will have a job at all in a few weeks or ever get back to work. Imagine the anxiety felt and the impact that could have on the mental health of those workers if they are also not properly supported or in regular, meaningful contact with their colleagues and managers.

Tribunal potential

In summary, even though staff may be working remotely from home, that should not change the fact that an employer still owes certain legal duties to them to ensure their health, safety and welfare at work. The health and safety legislation does take into account what is reasonably practicable given the lack of direct control an employer has over a home working environment. So while an employer is not expected to monitor every minute of the working day for remote staff, they do need to take some basic steps to ensure physical and mental wellbeing.

These include making sure ergonomics are appropriate and that equipment is provided and used correctly. They should also ensure that regular contact is maintained with staff so that they feel properly supported, and if any issues do arise these can be detected early and acted on. Employers should be sensitive to the effects of isolation, and not only maintain regular contact about work issues but encourage social interaction too by way of virtual “get togethers” which allow team members to engage with one another at different levels and in a more relaxed situation, just as one would in a normal working week.

While we have yet to see Employment Tribunals dealing directly with cases that relate specifically to homeworking during the current pandemic, it seems inevitable such claims will arise. These might involve poorly handled redundancies of homeworkers, or perhaps disability or injury claims where workers have been neglected in some way, developed poor mental or physical health, become unable to work and found themselves dismissed. Employment Tribunals will look carefully at all the circumstances in such cases and if, for example, an employee loses their job for poor performance while remote working there will be an expectation that mitigating circumstances are properly taken into account and adequate support measures put in place. The world of work may be changing, but the legal obligations of employers remain as important as ever.

The Author

Chris Phillips is a partner and accredited specialist in employment law in Thorntons' Edinburgh office

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