Laws of Eve: Working from home and employer’s liability

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July 7, 2020

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Although working from home is not a new concept, the COVID-19 pandemic made it mandatory in circumstances where there were no plans were in place for it to be properly arranged.  Employers who were left with the alternative of closing their offices or allowing employees to work remotely had no effective option but to institute ad hoc arrangements to ‘keep the doors open’.

There are, of course, risk assessments and preparatory work that must (ideally) precede unhinging employees from their desks in the typical brick-and-mortar office and launching them into a virtual workplace.  Also, many employees usually have the option of making remote working a part-time arrangement, with the option to go into the physical workspace from time to time.  With COVID-19, crisis management replaced best practices, and many persons are now feeling the unwanted effects of the hasty arrangements.  Of course, there are still other employers who have recognised the benefits of having employees work from home and are taking them to make the arrangements permanent.

One of the most frequently asked questions concerning working from home is the extent to which employers may be liable for any injuries suffered by an employee while he or she is working from home.  Based on my research, many cases surround the question of the absence of a designated workspace or the inadequacy of the work area, including a proper workstation or chair.  What was surprising, however, was that a domestic-violence issue could take centre stage in an employer’s liability case involving an employee who was required to work from home.

Although the case involving the death of Michel Carroll occurred in 2010 in New South Wales, the facts of the case are as relevant today as if the incident had occurred during the pandemic.  According to the judgment of the New South Wales Court of Appeal (Workers’ Compensation Nominal Insurer v Hill [2020] NSW CA54), Carroll was murdered in her bedroom in their shared home by her de facto husband and business partner, Stephen Hill.  Although Hill was found not guilty by reason of mental illness, because he suffered paranoid delusions, Carroll’s children (a teenage son and a six-week-old baby) made a claim for worker’s compensation on the basis that she had died as a result of an injury arising from, and in the course of, her employment.

Carroll was employed to a hospital as a psychiatric nurse.  Although she was in her bed in her own home at the time of the assault, the question was whether she was attacked during the course of her employment and whether the attack was causally connected to her employment.  These questions were relevant because Hill’s delusions related to work and personal issues.  He believed that there was doubt as to the baby’s paternity, that Carroll was having an affair, and spying on him and trying to take away his clients.  

Before the arbitrator at the Workers’ Compensation Commission, evidence was given as to the places in the home where Carroll worked to say that it was a fluid space and, in the weeks leading up to the birth of her second child and after, she often worked in her bedroom and used her laptop while she was on her bed.  There was also evidence as to the times she usually worked.  Despite the fact that there was no direct evidence that Carroll had actually started working or had taken any calls on the fateful day, the arbitrator found that she was in the course of her employment at the time of the assault because it occurred during her usual work time and she was on call.

The arbitrator also considered whether Carroll’s employment was a substantial contributing factor to her injury.  On the evidence, it was found that Hill’s delusional beliefs were founded upon his perception as to how Ms Carroll was conducting her employment activities, and this was a causal link that made the employer liable.

The children were awarded $450,000 and the insurer appealed.  On March 31, 2020, the New South Wales Court of Appeal dismissed the appeal and upheld the award.  The argument that Carroll’s workplace was peaceful prior to the day of the attack was not accepted, because it was clear that it was not peaceful on the day in question.  

Although the case turned on the interpretation of various provisions of the New South Wales Workers’ Compensation Act 1987, the general principles of law raised in it leave one to wonder whether similar findings could be made on those facts in Jamaica.  Of course, this ruling also means that employers should carefully consider how the course of employment is to be defined when an employee works from home and whether there is adequate insurance coverage with respect to those situations.

Sherry-Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes, Scholefield, DeLeon & Co.  Please send questions and comments to lawsofeve@gmail.com.

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