Introduction

1. Thanks to electronic and digital developments, now more so than ever, Irish employees want to avail of flexible working arrangements in order to have a better “work-life balance”. Many employers, particularly in the start-up arena, may favour flexible working in order to minimise their property spend. Better broadband access, improved wi-fi availability, cheaper laptops, smartphone capabilities and wireless headsets means employees have accessibility to work wherever they are, which is more conducive to flexible working.

2. Flexible work needs a flexible working environment, and this is where concerns arise about whether offering flexible work hinders employers in complying with their legal obligations to employees, particularly in the areas of working time and safe places of work. Flexible working clearly demonstrates the interaction of health and safety law with employment law provisions, and how all aspects of employers’ obligations need to be considered.

3. Implementing specific conditions to facilitate flexible working needs to be managed suitably in conjunction with other health and safety management systems operated by employers, to avoid liability for breach of their obligations to employees. I have considered a number of different types of flexible/atypical worker below.

Employers Duties

4. Taking things back to basics from a health and safety law perspective, and employer’s statutory obligations under section 8 of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”), these can broadly (and very basically) be described to include the following:

• Managing and conducting all work activities so as to ensure, (insofar as is reasonably practicable), the safety, health and welfare of people at work;
• Designing, providing and maintaining a safe place of work that has safe access and egress, and uses plant, machinery and equipment that is safe and without risk to health;
• Providing information, instruction, training and supervision regarding safety and health to employees;
• Providing and maintaining welfare facilities for employees at the workplace;
• Preventing risks to other people at the place of work including, for example, visitors, customers, suppliers and sales representatives; and
• Having plans in place for emergencies.[1]

5. All of the duties contained in sections 8 to 17 of the 2005 Act are subject to the limitation that parties are required to do what is “reasonably practicable” (so, in respect of section 8 outlined above, the overall duty is that “every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”.)

6. An employer wishing to consider flexible working arrangements, or engaging atypical workers will need to consider more than their obligations under the 2005 Act, and any regulations enacted thereunder for the purposes of health and safety. As mentioned above, working time is a big consideration in flexible work. In the case of Andeshauptstadt Kiel v. Jaeger[2] the Courts of Justice of the European Union (‘CJEU’) stated that:

“it should be pointed out that the purpose of Directive 93/104 [the Working Time Directive] is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.”

7. Consider also the impact of obligations under the Employment Equality Acts 1998-2015 (‘EEA’). Section 16 of the EEA provides that employers will not be required to recruit or promote an individual (or provide training/experience to them) if they are not fully competent and available to undertake, and fully capable of undertaking the duties attached to that position. However, a person who has a disability is considered to be fully competent to undertake and fully capable of undertaking, any duties, if they would be so fully competent and capable with appropriate measures of reasonable accommodation being provided by the person’s employer, unless those measures would constitute a disproportionate burden on the employer.

8. The nature and extent of an employer’s obligations under this section was comprehensively considered by the Labour Court in An Employer v A Worker[3], in which the Labour Court said:

“The provision of special treatment or facilities is not an end in itself… [it] can involve affording the person with a disability more favourable treatment than would be awarded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home… The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.” See also An Employer v A Worker (Mr O)[4]

Home workers

9. Originally, the idea was that by working outside of the office employees could enjoy a better work-life balance (while employers could reap the commercial rewards of cutting back on real estate expenses). Ireland still has no real legal framework for flexible working, although the concept of e-working has been around for many years. The DJEI (or the DETE as it was then) issued a Government Code of Practice in 2000 which addressed many issues associated with home working. It recommended the implementation of an e-working policy, addressing issues such as the working space/location, equipment and furniture, privacy, training, security and insurance. It also acknowledged that social isolation could be a problem for many e-workers and communication (methods, frequency etc.) needed to be addressed correctly.

10. Consideration should be given to how requesting or allowing employees to work from home is going to give rise to additional obligations under the 2005 Act. There is no reason why they should not apply to a person whose workplace is based at an office in their home.

11. Technically, insofar as an employee is working from an office space in the home, there should be a site specific safety statement based on a risk assessment carried out at the place of work. In practice, there are very few employers who actually do this, in spite of the same risks arising (for instance, in regard to fire safety, first aid, lighting, VDU safety, and working hours under the OWTA). That said, there is little guidance on when this obligation is triggered (for instance, if employees are primarily office-based, but work from home in the evenings, it’s unlikely that the employer would be obliged to do a risk assessment/prepare a Safety Statement in those circumstances). Employers also need to consider other factors such as insurance (the employee’s home insurance and their insurance on business equipment used outside the business). The HSA’s guidance note on Lone Workers includes those working from home (see below).

Lone workers

12. Anybody who works alone, including contractors, self-employed people and employee, is classed as a lone worker. They are specifically recognised in Regulation 2(3) of the Safety Health and Welfare at Work (General Application) Regulations 2007 (“the General Application Regulations”) and include:

• people in fixed establishments where only one person works on the premises, e.g. in small workshops, kiosks, petrol stations, shops and home-workers;
• people work separately from others, e.g. in factories, warehouses, some research and training establishments, leisure centres or fairgrounds;
• people who work outside normal hours, e.g. cleaners, security, special production, maintenance or repair staff, etc.;
• people who work working away from their fixed base, e.g.  on construction, plant installation, maintenance and cleaning work, electrical repairs, lift repairs, painting and decorating, vehicle recovery, etc.; and
• service workers, e.g. postal staff, sales representatives and similar professionals visiting domestic and commercial premises.

13. Section 19 of the 2005 Act requires the employer to undertake a risk assessment, and this will form the basis of whether or not an employee may work alone. Therefore, in general, an employer must assess whether an employee is at a significantly higher risk when working alone. Employers must also be aware of any specific legislation on lone working, which may be applicable to their specific industry, e.g. supervision in diving operations.

14. The HSA recommends the following control measures to minimise the risk to lone workers and this should include employees working from home:

• communication is very important: mobile phone, telephone or radio;
• controlled periodic checks;
• automatic warning devices, e.g. panic alarms, no movement alarms, automatic distress message systems, i.e. pre recorded message sent if not actively cancelled by operative, etc.;
• instruction and training in proper procedures, e.g. code words for potentially violent situations  when combined with mobile phone communication;
• use of Personal Protective Equipment (PPE);
• health surveillance;
• first-aid kits and training;
• implementing Standard Operating Procedures (SOP’s);
• locking and securing place of work;
• implementing correct incident reporting procedures; and
• provision of counselling.

15. The HSA has excellent guidance documents on lone workers with recommendations on policies and procedures, in particular those who work in high risk areas (healthcare etc).[5]

Employees on Secondment

16. While employees on secondment are not necessarily working flexibly, they are in an atypical working arrangement which gives rise to questions around health and safety at work and the duties owed to such employees. The basic statutory duty in regard to protection of the health and safety of employees is extended in section 12 of the 2005 Act, to manage and conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that in the course of the work being carried on, individuals at the place of work (not being employees) are not exposed to risks to their safety, health or welfare. Probably the most obvious example of this would be an electrical contractor who is doing a small job within the business or client site. However, with the development of employment law and new arrangements for work, this has led to a question mark over the years for employers who are hosting secondees, but more particularly for those who are placing them.

17. For instance, the duties set out in section 8 above don’t just apply to employees who are carrying out work at their employer’s place of work, so that if an employee is working in a different workplace than the employer’s business premises, the duties under section 8 will still apply. An employer can’t rely on the duties contained in section 12 to absolve themselves of liability and impost all liability on the host organisation – see for instance the case of Dunne v. Honeywell Control Systems Limited.[6]

18. The extent of this duty may depend on the level of risk arising both at the place of work and in the work involved (for which no doubt the employee will already have been instructed and adequately trained). Many employers who host contractors have contractor policies in place which deal with contractors’ obligations to comply with safety standards, separation from host employees etc[7].  Sometimes, if those obligations are taken further, such that the host employer supervises and trains employees of contractors (or self-employed contractors) this can create a quasi-employment relationship, at least for health and safety purposes.  If that “spilled” over into a legal employment relationship, it could have serious implications for the host employer. See for instance the case of Mulligan v Laurence Mechanical Service Ltd and Lakeland Dairies Co-Op Limited.[8]

19. Overall, while there is no general duty on employers to inspect other people’s premises before sending employees for work, in particular where it may be one of many jobs on a number of sites, employers will need to use their discretion in circumstances of employees on secondment where they are based on a client site full-time and the work or the place of work are of high risk.

Conclusion

20. Overall, it seems that flexible work, and atypical work spaces and arrangements will continue to develop, probably with greater speed than we have heretofore seen. Employers who are open to these arrangements stand to benefit from a more satisfied and engaged workforce, but should be very cognisant of statutory and common law obligations. This will include ensuring that their safety management systems incorporate these arrangements, and also consideration of whether employees’ employment rights have an impact on the health and safety management of the organisation.  It is incumbent on employers to implement appropriate policies and procedures for dealing with new ways of working so that all parties are clear on their duties and obligations.

[1] www.hsa.ie (see any of the Guides to Safety Health and Welfare at Work on the HSA website)

[2] Case C-151/02 [2003] IRLR 804

[3] EDA 13/2004 (reported at [2005] ELR 159

[4] DEE 10/2004 (reported at [2005] ELLR 113

[5] http://www.hsa.ie/eng/Topics/Hazards/Lone_Workers/

[6] [1991 ILRM 595

[7] See further Byrne, Safety Health and Welfare at Work Law in Ireland, Chapter 14.

[8] [2003] IEHC 97

August 2016. 

*This article is a shorter version of a paper presented by Síobhra at the annual Health and Safety Review conference in May 2016 www.healthandsafetyreview.ie

Disclaimer

This publication is for guidance purposes only. It does not constitute legal or professional advice. No liability is accepted by Ogier Leman for any action taken or not taken in reliance on the information set out in this publication. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. Any and all information is subject to change.