What are our health and safety obligations in respect of staff working from home?

Within a few weeks, maybe now only a few days, there will be more UK employees working from home than ever before. It remains to be seen whether this will herald irreversible longer-term changes to the traditional commuter model, but in the short-term, and assuming you can make it work logistically and managerially, is it ok legally? In particular, how far do your obligations to provide a safe system at work under the Health & Safety at Work Act apply once the employee has watered his plant for the last time, packed up his laptop and headed home to carry on your business from his kitchen table?

Section 2 HSWA imposes an obligation on employers to ensure, so far as is reasonably practicable, the health, safety and welfare of all its employees. Section 2(2) expands that to require the provision of appropriate instruction, information and training, and Section 2(2)(e) refers to the making of “arrangements for their welfare at work”.

The welfare point will be very important for those many who will have no prior experience of WFH on any extended basis or of the psychological issues of isolation and loneliness which it can create. Doing it for half a day waiting for the gas man is one thing; doing it for weeks on end, another altogether. and that is even before you get to the physical damage which can be caused by having no company all day beyond a packet of chocolate digestives.   Where homeworking is not really voluntary and Covid-19 is so virulent, investment by employers in keeping in constant touch with their new homeworkers will be key, both from the Section 2(2)(e) perspective and in terms of good employment relations.

The “information, instruction and training” requirement probably does not apply to the job itself in these circumstances, but could certainly touch on the ergonomics of how employees unused to working from home (and perhaps without office chairs or desks) set themselves up there. You should probably send screen-workers the Health & Safety Executive’s very comprehensive DSE checklist, with instructions to comply with as much of it as they can. You will need to be realistic – the Guidance recommends such measures as obtaining new adjustable chairs, fitting sound-proofing, etc., which will simply not be viable in the vast majority of cases.

You can ask your staff to send you their own summary workplace assessment based on your usual form – homeworking on this scale will make it impossible for you to check in every case that they have it just so, but the mere fact of completing the assessment will hopefully act as a prompt and guide.

Ultimately, however, how can you check that your employee is not actually working under a flickering 40-watt bulb, slumped over a tiny table against the background fizz of not quite adequate power sockets? You can’t, but in most cases you probably don’t need to – not only are the overall HSWA duties qualified by what is reasonably practicable, but Section 2(2)(d), which deals with the physical state of the employee’s workplace, is specifically limited to those which are “under the employer’s control”.

Some written homeworking arrangements include express provision granting the employer the right of access to the employee’s home to install or remove company IT equipment. That would not be “control” for that purpose. However, if you also reserve that right for the purposes of carrying out health and safety risk assessments, that might be. In view of the entirely understandable reciprocal reluctance of some of your staff to go into the homes of those who are self-isolating, and in turn of those staff to have into their homes someone who may or ought to be, and because the current crisis means that more of your employees are WFH than you can possibly visit anyway, it may well be worth omitting that provision.