Employers must grasp potential liability for workers’ compensation claims for WFH staff

This year, we are likely to see increased debate and possibly case law on employees’ right to work from home. As such, employers and HR professionals must review internal processes to ensure compliance with safety obligations, argues a senior lawyer.

Precedent

As recently reported by HR Leader, research shows that most white-collar workers in Australia have formed the view that working from home (WFH) is a fundamental right.

To this end, and with the lines between home and work becoming increasingly blurred, it is incumbent upon workplaces to ensure that they are providing safe, idiosyncratic working environments, lest they be liable for compensation for injuries sustained at home.

Catherine Dunlop, who is a partner and leads the safety practice at national law firm Maddocks, told HR Leader that despite the most recent available data from the Australian Bureau of Statistics (ABS) (from 2021–22, at which time pandemic-inspired lockdowns were a feature), less than 1 per cent of claims arose from workers people working from home at the time.

Anecdotally, however, “we are hearing of claims arising from slips and trips at home, like the Vercoe case. With more people tending to have a hybrid model of working, we would expect the number to increase”, she said.

The aforementioned case – Vercoe v Local Government Association Workers Compensation Scheme [2024] – involved a council worker who tripped and fell on a metal fence that she’d installed to keep her puppy out of her home office. The South Australian Employment Tribunal ruled in the worker’s favour, finding that her home was her place of employment at the time the injury occurred and that the puppy fence was a feature of that location.

This case (as well as the 2011 case of Hargreaves v Telstra Corporation Limited, which also found an employer liable for injuries sustained while working from home) serves as warnings to employers, Dunlop outlined, that they need to understand that their potential liability for workers’ compensation arises in any place, “be it at home, or at a third-party site, provided the injury arises out of or in connection with the employment”.

“This will include situations such as a worker on a coffee break,” she said.

“The fact that a worker creates the hazard is not a barrier to recovery, as all the schemes are no-fault. That doesn’t mean an employer shouldn’t implement measures to reduce the likelihood of a worker injuring themselves.”

Practical steps

When asked how best employers and HR professionals can safeguard their businesses from at-home workers’ compensation claims, Dunlop said they should provide guidance to their staff on safe WFH arrangements, such as Safe Work Australia resources.

“However, as the magistrate in the Vercoe case indicated, this is not enough,” she said.

“Employers also need to consult with their workers about their working-from-home arrangements, provide regular updates and expect or require regular updates from their employees about those arrangements, and anything that has changed or is unique.

“Employers also need to address both physical and psychosocial hazards, so not just slips and trips risks but also isolation, high or low work demands or control, the risk of family violence or the risks of exposure to traumatic material – which could be made worse by accessing this at home without support arrangements.”

An employer’s WHS/OHS duties extend to the home workplace, Dunlop continued, so the requirements to assess risk, consult, address risk and review control measures will apply.

“There may be times when an employee claims privacy and objects to an employer’s involvement in their home workplace,” she said.

“This should be negotiated appropriately so that any oversight is done on a need-to-know basis and is risk-based.”

Looking ahead

Moving forward, Dunlop said there is currently no indication that there will be any additional legislation or regulation in this space: “Most safety regulators already provide guidance on working from home, so it is important that employers are aware of the current advice in this area.”

This said, 2025 is “likely to see”, she added, increased debate and cases on the “right” to work from home.

As such, “it is timely for employers and HR professionals to review their approval processes for remote working arrangements to ensure they are complying with their safety obligations (including consultation, risk assessments and reviews) and taking steps to involve their workers to reduce risks”, Dunlop said.