At common law, an employer is responsible for his employee’s health and safety, as described under the following four headings, to provide:
A competent staff of employees
The employer must hire workers who have the requisite skills to perform their jobs or train them and discipline them, when necessary so that they do not harm each other.
Adequate plant and equipment.
This means that the tools and equipment to carry out the job need to be provided and also maintained by the employer.
A safe system of working, with adequate supervision
An organised system and sequence of work need to be in place, together with persons to minimise the risks of injury.
A safe place of work
The workplace needs to be reasonably safe for the employee to carry out the job, depending on the nature of the job.
This composite duty is not absolute. Instead, it imposes an obligation on the employer to act reasonably to avoid a breach of the duty.
A breach occurs if (a) an employee suffers harm which is caused by or materially contributed to by the employer’s actions or omissions; (b) the harm was reasonably foreseeable; and (c) it is fair, just, and reasonable to impose liability on the employer.
The obvious problem when an employee is working from home is that the employer is not directly in control of the workplace and the supervisors are unable to oversee the performance of the job. This means that the employer is, to a great extent, relying on the employee’s professional integrity as well as electronic processes to monitor performance.
As with situations in which an employee is required to work on-premises controlled by a third party, the employer’s responsibility to ensure that the employee is safe while carrying out the job continues while he or she is working from home. It would, therefore, be prudent for an employer to take reasonable steps to avoid being exposed to liability for injuries the employee may sustain while acting in the course of his or her employment. The following steps, which were set out in Charlesworth on Negligence, may provide useful guidance:
- Inspect the premises to find out whether they are reasonably safe for the work to be done.
- Where the resulting inspection reveals a danger that is out of the employer’s hands to remedy, it may be sufficient for the employer merely to warn the employee of its existence.
- Where the risks are too great or the giving of a warning is insufficient for the employer to merely warn the employee of its existence, a prudent employer ought not to permit his employee to work there until the premises have been rendered safe by the occupier.
- If, on inspection of the premises, there is a danger is seen against which the employer can take positive reasonable steps to protect his employee, he must take such steps in order to discharge his duty of care.
- If the employer fails to do so, the fact that the servant knowingly incurs the risks raises only the question and concerns the degree of his contributory negligence.
- It is no answer to a claim for employer’s liability to say that the employee had made no complaint about the safety of his or her place of work.
While an employee works from home, the employer must ensure that there is proper data protection for the handling of confidential material and ascertain whether employer’s liability insurance covers the employee while working in that space.
The lengthy, and, seemingly, onerous requirements are not likely to have entered anyone’s thoughts as we all switched into survival mode and willingly worked from home in the face of the COVID-19 pandemic. Sadly, the list is not an exhaustive one, and as remote working may become a permanent arrangement for some employees, employers need to be mindful of their potential exposure to liability for injuries to employees while they are working from home.
Sherry Ann McGregor is a partner, mediator, and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to email@example.com.