Assessing Your Liability as an Employer in Hong Kong When Staff Work From Home

Introduction

Though the number of confirmed cases in Hong Kong is declining, working from home is becoming normal against the COVID-19 threat as social distancing is a key strategy in minimising the risk of the disease spreading. In accordance with the Hong Kong SAR Government’s directive, civil servants are still working from home and many organisations have employed a similar plan or roster system. This article explores employers’ potential liabilities for accidents that employees might sustain while working from home.

Employer’s Potential Liabilities under ECO

The Employees’ Compensation Ordinance (Cap. 282) (ECO) contains no specific provision about whether an employee who is injured while working from home is entitled to employees’ compensation. Nonetheless, the general position under the ordinance is that if a personal injury by accident “arises out of and in the course of employment”, the employer shall be liable to pay compensation in accordance with the ECO.

Case law would treat an accident be as one that has occurred “in the course of employment” if it is in discharge of the employee’s duties or is reasonably incidental to his employment (for example, doing something which he or she is expected to do to carry out his or her duties). The court will look at all the facts as a whole so any one factor is not conclusive.

While Hong Kong does not have any case authority yet in dealing specifically with injury sustained when working from home, some in Australia are insightful:

1. Slip and fall while attempting to answer a work call: In Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121, Ziebarth was employed as a fleet service manager at a transport company and responsible for organising a replacement fleet vehicle whenever there was a breakdown. He sustained an accident at home when he slipped in the bathroom trying to answer a work call on his mobile. He was having a shower at the time. The Workers’ Compensation Regulator rejected his claim but Ziebarth was successful on appeal. The Court applied the test of whether the employer induced or encouraged the activity that the worker did at the time of the injury. The Court held that the worker was injured “in the course of employment” and hence was entitled to worker’s compensation, because his duties under the terms of his employment contract required him to be on call from time to time even when he was at home.
2. Organising the interior of an employer’s vehicle at home - a technician injured his back when organising the interior of the van provided by his employer on a Sunday before commencing work on Monday. The Court held that the injury occurred in the course of his employment because the employer had expected the employee to keep the interior of his van clean and tidy and it was a common practice for technicians to do so outside normal working hours. Also, the employer’s act of cleaning is beneficial to the employer because this would allow the employee to work more efficiently (see Ledwidge v Optus Administration Ltd [2008] AATA 58).
3. Fall down staircase while taking a short break and locking up home - In Hargreaves v Telstra Corporation Limited [2011] AATA 417, while working from home, Hargreaves fell down the stairs leading from her workstation to the refrigerator downstairs while taking a short break. On another occasion, after commencing her work at her home, she went downstairs to lock the door for better security under her employer’s instructions and fell again.
   
   The Court held that both accidents occurred “in the course of employment”: As regards the first, she had to go downstairs to take an absence from her workstation at home for necessities of nature similar to a bathroom break; and as for the second, the employee was complying with her employer’s instructions to lock the door, thus bringing her action within the scope of employment.

Although there have been no reported cases in Hong Kong, we expect that the courts here are likely to take a similar approach to that of the Australian courts. As such, employers are recommended to consider the potential risks of their employees working from home (see the practical considerations below).

Employer’s Potential Liabilities under Common Law

Under Common Law, employers have a non-delegable duty to take reasonable care of all employees’ safety and health and to provide a safe place of work, even if they are working from home. An employer could be held liable in negligence in common law or for a breach of statutory duties or an implied duty in an employment contract to provide a safe working environment if it fails to take reasonable care to see that the employees are reasonably safe.

Although an employer’s duty towards its employees is not absolute and the duty does not extend to removing all risks inherent in the home environment, the standard required is one of reasonableness. When deciding what are the “reasonable” measures which an employer ought to take to alleviate the risks to workers working at home, a court will look at all the circumstances, including the size and financial resources of the employer and the degree of risks involved. What is particularly challenging in Hong Kong, however, is that homes are small.

Employer’s Statutory Duty under Section 6 of the OSHO

An employer is also under a statutory duty to, so far as reasonably practicable, ensure the safety and health at work of its employees (section 6(1) under the Occupational Safety and Health Ordinance Cap. 509 (OSHO)). The cases in which an employer fails to comply with such statutory duty include “a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health” (section 6(2)(e) of OSHO). An employer who fails to comply with such statutory duty intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of HK$200,000 and six months’ imprisonment.

Practical Considerations 

1. Assess and review the suitability of working from home – Suitability of work-from-home arrangements should be considered in advance and should be reviewed regularly.
   • Consider requesting staff to complete a work-from-home safety checklist to confirm suitability. The checklist should address matters such as sufficient work space, ventilation and lighting. 
   • Check with staff from time to time to see how they are doing working from home. This will provide an opportunity for the employer to address any issues or concerns, e.g. psychological stress due to isolation; lack of support from colleagues or superiors; equipment or communication issues, or where home working is no longer suitable due to changes in the family situation or home environment.
2. Formulate a detailed work from home policy – The work-from-home policy, which should be clearly communicated to the staff, should require staff to notify the employer in writing immediately of any safety issues with working from home, including any “near misses” or accidents. The latter in particular is to enable the employer to fulfill its obligation to file a Form 2 to the Labour Department within 14 days of the accident under Section 15 of the ECO. The emergency contact information of the human resources / management staff should be provided to employees.
3. Training and information to employees who work from home – Employers should consider:
   • providing safety information leaflets to staff (including the publications by the Labour Department, which are accessible on the Labour Department’s website); and
   • arranging regular (online) seminars for staff by relevant experts (e.g. occupational therapist). 
   Employees should also be encouraged to discuss with the employers if they face or foresee any practical difficulties with working from home.
4. Discuss with your insurer about how to better manage the risks – Insurers may be able to provide practical support such as collaboration with the employer on staff training. Employers should also consult insurance brokers on whether it is necessary for employers to take out additional insurance, such as Employment Practices Liability Insurance, to better manage the risks associated with working from home.
5. Managing and investigating the work injury claim – After receiving an accident report , report it to the employees’ compensation insurers in writing promptly (subject to the terms and conditions of individual insurance policies) and take a statement from the injured employee at the first opportunity while his or her memory is still fresh. Ask the employee to take photos of the home environment as soon as possible after the accident to confirm the mode and nature of the accident. Gather documents containing information on terms of employment and ascertaining scope of duties and hours of work from his or her supervisors.

Conclusion

In light of the potential liabilities for employers when staff work from home, employers should adopt a proactive role in reviewing the suitability of work-from-home arrangement from time to time to see that their employees are reasonably safe.