Employers Work From Home Liability

By 27 May 2020Blog

Multitasking

The kitchen table has never been in such demand. Cereal is cleared by 9am for it to become a conference stage, complete with virtual background, for the first meeting of the day. The hours that follow include a series of emails, calls, meetings and frantic deadlines, followed by a surface for jigsaws at 5pm, before dinner is served at 8pm. For some, this is the busiest they have ever been.

That aesthetically pleasing bench that was so elegant for friends and family to gather on may not seem like such a good buy now you’re forced to teeter on it for hours, peering into your dainty screen. Or perhaps you’ve been relegated to the bedroom, trying to type whilst balancing your laptop on your knees as you battle the fully stretched and very comfortable house pet for space.

Physical and mental health

Few were lucky enough to have home offices up and running before the coronavirus crisis unfolded, so these challenges are a daily reality for many of us. Two months into lockdown, and we’re starting to notice contemporaries complain of back and neck pains, stiff shoulders and sore wrists. The physical side-effects of home working are taking their toll as most were woefully under-prepared for spending such a long period away from the office.

Our mental health is under pressure too. We’ve lost most of our normal daily structures and routines, our social lives have been confined to screen time and some of us are under serious financial strain as well. A lot of those who were living with depression or anxiety before the crisis have found their symptoms worsening under lockdown and others are finding themselves developing symptoms for the first time as they struggle with isolation in circumstances they have never faced before. It’s not only those facing lockdown alone that are suffering, with relationships coming under strain as couples and families are now forced to live, work and socialise exclusively together under one roof. No one imagined a 24/7 marriage as they glided down the aisle that happy day.

These physical and mental challenges make the management of work-related stresses and strains much more difficult. Moods are fractious and necks are stiff. As an employer, the work-related physical and mental health of your staff is your responsibility and you can be held liable for any injury incurred by your employees if this arises from a failure in your duty of care to them.

The realities of self-isolation are unlikely to end in the near future. Those living with vulnerable persons cannot return to the daily train commute for fear of returning home with the virus and, if desks and other work-stations need to be at least two metres apart, it is estimated that there will be only be space for a third of us to return to work at any one time. Sadly, at the present time a safe return to the office in ‘back to normal’ mode looks months away.

You’re not moving my sofa

The employer’s duty to minimise the risks to its employees means that there is currently no alternative to staff being required to work in unregulated home-working environments. Undertaking home-workplace assessments becomes a duty of every employer and those employees that do not meet the necessary standards will either have to forego any liability or take action to meet the employers work from home requirements.

At the time of writing, there is almost no direct government guidance on employers’ responsibilities to prevent physical or mental injury to their employees for prolonged periods of home working. The Chartered Institute of Personnel and Development (CIPD) is one of the few bodies providing guidance for employers, with free work-from-home risk assessments and policy updates. Other sources include the Health and Safety Executive (HSE) and ACAS, whose advice can be found via the following links:

Potential Claims

As homeworking looks set to continue, employers may soon be reaching for their Employers Liability, Employment Practices Liability and Directors’ & Officers’ Liability insurance policies and may need assistance from their insurance advisers to deal with claims. Some examples of how claims might arise out of homeworking include:

Employers Liability:

  • An employee suffers repetitive strain injury or back pain because the computer equipment has not been set up in a way that minimises the likelihood of these conditions;
  • Bodily injury if the employee contracts COVID-19 because they were exposed to an unsafe environment, which may include having no alternative but to commute on a crowded train.

Employment Practices Liability:

  • Allegations of discrimination if the company is managing risks differently in relation to different locations, teams or individuals;
  • Constructive dismissal if an employee believes they were retaliated against because they opted out of a work-related event or meeting due to concerns over coronavirus.

Directors’ & Officers’ Liability:

  • An employee directly names a director as responsible for a failure to protect their physical or mental health;
  • Claims for lack of preparedness and poor contingency planning – companies may find themselves facing allegations that they were under-prepared to address virus-related operational risks whilst at the same time ensuring staff well-being.

Cyber Liability:

  • An employee may accdiently or intentionally cause a breach of other employees peronal data that leads to a legal action against employers
  • The Company may misuse details of employees working conditions/requirements which could be deemed a breach of privacy.

For now there are no contagious disease exclusions on these policies but this may change, as a ‘covid-19 exclusion’ is currently under consideration in the insurance market.

About Elmore Insurance Brokers

Elmore Insurance Brokers Limited advises its clients to actively manage risk to optimise insurance.  Insurance is a partnership between businesses and insurers. This partnership can be significantly enhanced by focused engagement to understand and implement risk management best practice.

Written by Simon Gilbert, Founder & Managing Director, Elmore Insurance Brokers Limited.