May 14, 2012
May 10, 2012
Update on Employers’ Legal Obligations to Provide a Safe Work Environment – Workplace vs. Home
Under the Fair Work Act 2009 (Cth) (FW Act), employees with family or carer's responsibilities have the right to request flexible work arrangement, such as working from home. With the developments in technology, it has become quite common for employees to work from home.
The questions are: how can employers ensure that, whilst they provide employees with flexible work arrangements, the employees' home (or wherever they perform their work from) is a safe work environment and to what legal risks the employers may be exposed.
A recent decision of the NSW Administrative Appeals Tribunal in Hargreaves and Telstra Corporation Limited  AATA 417 (17 June 2011) (the Hargreaves decision) illustrates that employers may be held liable for injuries sustained by employees whilst working from home.
The Hargreaves Decision
Dale Hargreaves entered into an informal arrangement with her employer, Telstra, to work from home two (2) days a week. To assist Ms Hargreaves to perform work from home, Telstra provided Ms Hargreaves with the necessary equipment, including a laptop computer, mobile telephone, internet and access to Telstra's computer system at its expense.
Ms Hargreaves lodged applications for compensation, on two (2) occasions, for injuries suffered whilst she was working from home alleging that the injuries were sustained "in the course of employment".
On both occasions, Ms Hargreaves fell down the stairs at home whilst having a break from work and injured her left shoulder. She was, on both occasions, descending the stairs in socks (and with no shoes on) and slipped. Ms Hargreaves subsequently claimed that she developed a psychological illness which was purportedly related to her physical injuries.
Telstra denied liability on the ground that the injuries were sustained outside Ms Hargreaves' designated workstation, i.e. the injuries did not arise out of, or were not in the course of her employment.
The Tribunal found that both incidents occurred in the course of Ms Hargreaves' employment on the following bases:
In relation to the first fall, the accident occurred whilst she was going to get cough medicine from the fridge located downstairs from her home office, which was held by the Tribunal to "constitute a need for an absence from her workstation for necessities of nature such as a toilet break or a meal break".
The second fall occurred whilst Ms Hargreaves was walking downstairs to lock the screen door following the instructions of a senior officer of Telstra. The Tribunal accepted that the requirement to lock the screen door "became part of her obligation or an incident of her employment and had not been altered or rescinded". As such, the Tribunal formed the view that Ms Hargreaves sustained injuries from the second fall whilst in the process of carrying out a work requirement as directed by her employer.
Telstra was held liable to pay compensation and costs to Ms Hargreaves for the injuries sustained whilst working from home.
What does the Hargreaves' decision mean for Employers & Issues to be Considered
The Hargreaves' decision demonstrates that an employer's workplace health and safety obligations to its employees extend to employees taking necessary breaks whether the employee is at the premises of the employer or carrying out their duties from home.
It is therefore imperative for employers to carefully consider whether a ‘working from home' arrangement is reasonable given the inherent requirements of the role.
Employers are also recommended to conduct a risk assessment prior to the decision relating to the employee's request for working from home being made, bearing in mind that an employer may only refuse such a request on "reasonable business grounds". If an employer is found to have unreasonably refused an employee's request, such refusal may constitute contravention of the FW Act and/or discrimination on ground of family responsibility under the Anti-Discrimination Act 1996 (QLD).
To be prudent, employers are also recommended to consider implementing an appropriate company policy pertaining to flexible work arrangements (if you do not already have such policy in place), including working from home, to ensure that its employees take appropriate safety measures when working outside of the premises of the employer, and also that requests for such arrangements are made formally and properly considered and processed.
If you have any questions or wish to obtain further details, please contact our Employment Law and Workplace Relations Team.
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