Crawford mpany : Out of sight (but not) out of mind

COVID-19 has changed all of our lives forever and has drastically impacted many major business sectors globally. Whatever the business, it will likely be impacted in some shape or form by the pandemic. In addition to the obvious emerging risk of COVID-19 contraction in the workplace, personal injury claims arising from home-working may also be a future claim trend on the horizon.

There are several obvious benefits of home working. The main, for many, is a lack of commute resulting in a time and monetary savings and an opportunity for improved work life balance. Equally, employers who are considering a long term move to home or agile working will see savings on lease costs for commercial properties and a lesser spend on overheads such as utilities. In fact, a survey by the BBC found that fifty of the biggest UK employers said they have no plans to return all employees to the office full-time in the near future.

Owing to government guidance, employers who previously may have not been equipped or wanted to allow all employees to work from home (WFH) on a wide scale basis have found themselves with little choice to ensure employee safety, unless they had or have a key worker exemption. With this comes a new set of potential considerations and potential risks employers must consider - as out of sight does not mean out of mind when it comes to an employer's legal obligations to employees.

Blame game

The key claim trends we may begin to see are short-tail disease claims arising from employment whilst working from home together with short term orthopaedic injuries and the possibility of claims for psychiatric damage.

Repetitive Strain Injury / Work-Related Upper Limb Disorder (RSI / WRULD) claims could occur where it is alleged employers have failed to take any or all sufficient steps to ergonomically assess and implement measures to mitigate the risk of make shift work stations. Employers and their EL insurers may also see a rise in stress / psychiatric injury claims as a result of poor people management or communication paired with WFH isolation whilst in pressured working environments as all employees - management and their teams alike - adjust to this new era of home working.

Whilst these claims are nothing new and the legal framework for assessing them is not likely to alter, the basis to the claims and their backgrounds will vary from traditional work places where employers likely have stringent control measures via appropriate risk assessments for all obvious risks for office-based employees and where face to face contact is not an issue.

In an RSI / WRULD claim, the employee would need to evidence breach of duty. This could start with the employer's failure to properly risk assess the role and/or the work station. It might also be evidenced by the employer's failure to monitor working periods and implement proper breaks (where there are no clear lunch breaks or commute breaks) resulting in longer working days. Failures such as these, paired with provision of poorly-designed or non-ergonomic chairs and desks that result in poor posture while working, are likely to result in evidence of breach of duty.

Risk management - proactive prevention is key

The HSE has provided its own overview as to the obligations on employers in these circumstances. This can serve as a useful framework or starting point for employers assessing and seeking to mitigate risks (and, thus, future claims) that may occur in an employee's home environment. The HSE confirms:

'As an employer, you have the same health and safety responsibilities for home workers as for any other workers. When someone is working from home, permanently or temporarily, as an employer you should consider:

• How will you keep in touch with them?
• What work activity will they be doing (and for how long)?
• Can it be done safely?
• Do you need to put control measures in place to protect them?'

As we know, employers are legally obligated to ensure the health and safety of their employees. This is pursuant to (but not limited to) the Health & Safety at Work etc. Act of 1974. The HSE guidance contains a selection of main subject areas for consideration by employers (though these should not be considered exhaustive and each employer / role will require fact specific assessments):

• Lone working without supervision
• Stress and mental health
• Working with display screen equipment (DSE)

DSE assessments and WFH

For those who are WFH on a long-term basis (a period which is unspecified by the HSE, though we would consider anything beyond 12 months to be long term), the risks associated with DSE must be controlled. The guidance confirms the HSE does not consider there to be an increased risk from DSE work for those working at home temporarily (again, the period is unspecified). Therefore, in that situation, employers do not need to ask them to carry out home workstation assessments.

Key consideration points:

• Employers should take this as guidance only and keep roles / equipment, etc. under regular review in these circumstances where government guidance is ever changing.
• Where there is likely to be a long term or permanent placement of employees working from home, employers will need to redraft their risk assessment process to cover DSE equipment at home. This will likely include the provision of ergonomically sound work equipment - desk, chairs, etc.
• Employers will also need to consider if there has been a substantive alteration to the role of the employee such that a revised assessment may be needed.
• In the meantime, whilst employees are working from home in the short-term, employers should ensure that employees are taking regular breaks for movement and rest and avoiding working extended hours on a daily basis. This extended working can occur when employees' work days absorb periods of time that would usually be spent commuting, socialising, taking lunch, etc. Regular contact with employees and communication around this point can assist in risk management.

Lone working / stress and mental health

Key consideration points:

• Employers should ensure that employees are regularly engaged in virtual and telephone meetings. The WFH switch (in view of the 'zoom boom') should not impact communication and, if anything, should see employers increasing their contact with employees to avoid any issues with workplace isolation. Contact should include both informal engagements (virtual coffees) and usual workplace meetings to ensure all lines of communication are open.
• Employers should consider continuing team meetings and other social activities on a virtual basis to keep the work / life / social balance intact as much as possible during these times.
• WFH measures should not impact any workload monitoring or assessments that are already in place. That said, employers, whatever their industry, should be mindful of 'furlough fatigue' where employees are providing coverage for those employee whose roles may be temporally on pause. This can result in an increased workload during what is a stressful period for many, whilst working in isolation.
• Lack of workload management, people management and clear, regular communication could be considered the starting point for a claim for psychiatric damage, if left unassessed.
• A risk assessment dealing with appropriate workload measures and clear lines of open communication on a regular basis may assist employers in avoiding potential stress claims in the future. An emergency or out-of-office confidential contact point may also assist.

The future

For many organisations, home (or at least agile) working is here to stay. Employers will need to ensure that their insurance coverage is sufficient for a mass congregation of home workers and the associated risks. Realignment of working policies, risk assessments and measures to ensure employees are sufficiently protected will also be required during the COVID-19 landscape and beyond.

The speciality risks team at Crawford Legal Services is able to provide services across insurer / insured or self-insured entities and broker lines. For further information on our services or any questions arising from this article, please contact [e-mail]

The above guidance is not intended to be comprehensive or legally binding advice.