Last month, a German man who slipped down his staircase while walking from his bed to his desk won a legal claim for compensation for what he described as a “workplace accident” from a German federal court. He had, it was decided, injured his spine during his “insured work commute” and so was entitled to compensation through his employer’s policy. Although at first glance seeming slightly absurd, this case highlights the complex legal issues surrounding often unchartered territory in the mass move to “working from home” because of Covid restrictions over the past two years.
This could happen in the UK. Because existing health and safety legislation, continues to apply, employers have the same duty of care to employees when they are working from home as they did when they were in the office. If employers have failed to put the necessary safeguards and checks in place, perhaps leading to emotional distress, physical ailments or stress-related complaints, then they could be liable.
According to David Reade QC, while this specific sort of claim is less likely to happen in English courts, there are several other issues that could have far-reaching legal ramifications. “If an employer was on notice that people were working excessive hours at home,” he says, “and there were stress related factors, you could see they might be a duty of care there to manage and control their work levels.”
In a homeworking situation, it can be harder to monitor when employees are working, and employees are perhaps more vulnerable to being asked to be available for work—including out of hours emails and phone calls—than they might be with strict physical boundaries between the office and family home. The responsibility lies with the employer to find ways to detect how many hours an employee has worked, and if they are suffering with work-related stress and mental health issues.
Usually, in an office scenario, as Reade explains, “unless the consequences have been self-evident, employers haven’t tended to be liable unless they were put on notice that people had issues.” In a homeworking situation, however, when these issues are harder to detect, the employer may be liable if they did not have “better systems in place to deal with the fact that people aren’t checking in and seeing them physically.” These systems may include safeguards such as time sheets and routine self-assessments and meetings, to ensure that staff are not being overworked or otherwise being caused undue stress and illness, for example if they are living in cramped conditions.
While those with larger homes can feasibly have a study or room dedicated to work, for instance, those with less room may be forced to work in their bedrooms or shared spaces, which could put pressure on their relationship with others and collapse the divide between their home environment and their working environment. This also puts pressure on their relationship with others, if they are trying to manage their work in shared living spaces. Those with partners, children, family, flatmates and even pets are clearly at a disadvantage in terms of distraction and invasion of privacy. Cohabitants whose peace is disturbed by the relocation of work to the home become collateral damage, effectively, and may also suffer the consequences of stress and even harassment.
According to a recent report published by legal rights charity Rights of Women, there has been an “upsurge in online sexual harassment whilst working from home, as harassers take advantage of online work platforms and social media during the pandemic.” Moreover, “nearly one in three women who have reported sexual harassment to their employer said that the process had been negatively impacted by the pandemic.” Clearly, Covid has hindered the usual safe-guarding procedures.
One woman told researchers how working from home encouraged her harassers: “having to let colleagues into my bedroom (via video meetings) means I feel my privacy has been invaded and nowhere is safe. The men now have more ammunition to mock me with.” Another woman said: “the director of the company uses Zoom to take screenshots of myself and other women which he shares with colleagues making derogatory statements and implying the photos look like we’re doing sexual acts.”
As Reade points out: “In an office scenario, the antennae for the workplace predator are much more alive. In a collective workplace environment, everyone’s sort of got an eye out for each other or ought to have, and in siloed working from home, it doesn’t happen in the same way.” Furthermore, the intrusion of work into the home leaves many people more vulnerable to domestic abuse, since there is no “escape” from harmful situations.
Employers also have reason to be concerned about privacy from a business point of view. When employees work in insecure environments, whether living with flatmates who have conflicting interests, using IT equipment accessible by others, or even being in earshot of other people, the employer, crucially, would be liable for a data breach.
“It’s always been a big issue, about people using home equipment, and people accessing home equipment,” Reade says. “It may mean that if an employer is going to have people working from home, then they need to look into more provision for equipment for those people.”
That said, there has also been controversy about businesses using remote monitoring. A balance clearly needs to be struck between the company’s requirements of privacy and security and that of the employee and those they live with. Whose territory is it really? Whose space?
The shift from offices to makeshift home workspaces has given rise to some serious considerations for employers and workers, and those in the new shared “working environments.” There is a real need for legal protection of the domestic space. If employers do not take due care and responsibility, and adapt sensitively and carefully, then they may face myriad legal ramifications going forward.