08 April 2021

We can all accept as read that the pandemic has already led to a number of fundamental changes in relation to the way in which we work, with more to come. One in five small businesses are considering, or have already implemented, a revised working week. As the rollout of the vaccine programme progresses, the next challenge facing businesses is whether to allow employees to return to the office on a full-time basis, continue working from home, or provide employees with the option of a hybrid of both.

The notion though of home working, opposed vehemently by some business leaders, appears to have taken root. It has its attractions for employers (including the requirement for less office space), but with the potential downside of how to effectively monitor staff productivity.

A recent notable development that may lead to an increase in claims for personal injuries arising in the workplace is that of surveillance of remote-working employees.

First, some background. While section 69 of the Enterprise and Regulatory Reform Act 2013 means that ‘breaches’ of Health & Safety regulations can no longer be relied upon directly by Pursuers to establish civil liability, it is standard practice for Pursuer’s agents to refer to Health & Safety Regulations as confirming the ‘best practice’ to which employers ought to adhere.

In a sign of what could be on the horizon for some future home-based workers, the Guardian reported on 26 March 2021 that one major employer has recently informed staff of a proposal to use webcams, which will monitor for remote work-related infractions, including unauthorised absence from their workstations. When approached for comment, the employer confirmed that remote scans would not be used in the UK. Regardless of whether this takes place or not, it is easy to anticipate a situation where employees may spend longer time at their desks, without breaks, while working from home as opposed to in an office environment.

Employers will bear in mind the duty to assess the remote worker’s home workstation. Employers should not assume automatically that their staff have adequate facilities at home to undertake their duties. According to one set of statistics, 8% of home workers have reported suffering injury due to using an ironing board as a desk. That being the case, it is not difficult to accept that many working from home may have a makeshift workstation.

Where proper and adequate equipment has not been provided to the remote-working employee, such as a height adjustable chair, and where suitable consideration has not been given to the employee’s work station, it appears reasonable to conclude that the employee will be exposed to a greater risk of developing back pain, repetitive strain injury or eye strain, or potentially all three. If the added issue is factored in, that the employee is spending longer at their desk without the appropriate number of breaks, this would appear to be an additional risk factor. In short, where the employer allows employees to work in sub-optimal conditions, the employer is placed at greater risk of claims manifesting.

In terms of best practice, the Health and Safety (Display Screen Equipment) Regulations 1992 should be borne in mind by employers where display screen equipment is in use. A written policy, with evidence of communication of same to employees, would be reasonable, confirming that DSE users should take regular, short breaks away from their PC and it may assist in defending claims for personal injuries.

In summary, taking positive steps to ensure that staff who continue to work from home (as well as those in the office) do not feel that they are chained to their desk, may drive down potential claims.

Whether or not on the return to the office tea breaks will remain a feature, given the requirements for social distancing, is another matter. Expect sales of flasks to increase….

For more information please do not hesitate to contact us:

PERSONAL INJURY CLAIMS: Alistair Barbour, Associate & Solicitor Advocate: awb@bto.co.uk / 0141 221 8012

HEALTH & SAFETY AND REGULATORY DEFENCE: Vikki Watt, Partner & Solicitor Advocate: vwa@bto.co.uk / 0141 221 8012

EMPLOYMENT LAW: Caroline Carr, Partner & Accredited Specialist in Employment Law: cac@bto.co.uk / 0141 221 8012

DATA PROTECTION: Paul Motion, Partner & Accredited Specialist in Data Protection & FOI Law: prm@bto.co.uk / 0131 222 2932