As many businesses across Ireland continue to reopen in accordance with the government’s roadmap for reopening society and business, the Government’s guidance is that all employees who are able to work from home should continue to do so. In recent times, many businesses and organisations have swiftly implemented remote working arrangements for their employees in response to the Coronavirus (COVID-19) crisis.  As working from home or remote working becomes more prevalent across a range of industries, it is important that employers are aware of their obligations to employees who are working remotely.

Safety, Health and Welfare at Work Act 2005

In addition to a general duty of care owed by employers to their employees imposed by common law, there are a number of important statutory protections which apply to employees.  Under the Safety, Health and Welfare at Work Act 2005 (as amended) (the “2005 Act”) an employer has a statutory obligation to ensure the safety, health and welfare of employees while at work so far as is reasonably practicable. This includes providing and maintaining a safe workplace, preventing any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk and providing the necessary information, instruction, training and supervision to ensure the safety, health, and welfare at work of his or her employees.

These obligations apply in the same way to those who work remotely, and those who continue to attend the workplace in person.

Employer’s Legal Responsibilities

Typically, in workplaces where remote working has been implemented the employee is working from home, however it may also be some other location outside the normal workplace.  Wherever they are working, the employer continues to owe those employees a duty of care and has obligations under employment legislation, including the 2005 Act.  Employers should vigilantly and actively consider what reasonable steps should be taken to mitigate the health and safety risks within the workplace (both in the office and when working remotely) that may arise in connection with COVID-19.

If employees are working remotely businesses need to consider whether the employee’s remote work location is an appropriate/safe and healthy working environment that is also conducive to the employee being able to perform the requirements of their role.  Employers should provide practical support to ensure that employees have the ability to work remotely in a safe environment.

Employers should keep updated on the latest government and health advice, and keep their employees updated on the relevant policies.

Maintaining an effective grievance and complaints procedure within the employment is also an important aspect of the employer’s duty.

The Health and Safe Authority (“HSA”) website provides helpful guidance for employers and employees in relation to home-working on a temporary basis during the COVID-19 pandemic.[1]

Effect of Failure to Implement Appropriate Health and Safety Measures

Failure to implement appropriate health and safety measures carries severe legal risks for the employer and its senior officers.  The HSA monitors compliance with relevant legislation and can take enforcement action, up to and including prosecution of not only offending employers but also prosecution of directors, senior management and/or senior officers personally if they are found to have managed safety and health inadequately.[2]

Ultimately, the obligation is on employers to demonstrate that they did all that could be reasonably expected of them under the 2005 Act. This is a very high standard to achieve.

Where an employer breaches their common law or statutory duty to an employee they may be pursued by the employee, most likely in an action for personal injuries.

It is imperative that prompt steps are taken by businesses to address any issues, risks or dangers identified by an employee in relation to their working environment.

Conclusion

Responsibility for safety and health at work undoubtedly rests with the employer whether that work is being done at the traditional workplace or the worker’s home. While the basic principles associated with safety and health considerations are established, precisely how these principles will apply to these unprecedented circumstances remains somewhat unclear.  As a result, employers should exercise all of the necessary precautions in order to fully comply with their obligations to employees.

Should you require any specific information on this issue or any other employment law issues, please contact Ronan Hannigan or Ciara Dillon of this office at rh@hbmo.ie or cdillon@hbmo.ie.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

  [1] https://www.hsa.ie/eng/topics/covid-19/covid-19_faqs_for_employers_and_employees_in_relation_to_home-working_on_a_temporary_basis/faqs_for_employers_and_employees_in_relation_to_home-working_on_a_temporary_basis_covid-19_.html

[2] Section 80 of the Safety, Health and Welfare at Work Act 2005.