Managing musculoskeletal risks caused by mobile working - the legal basis (UK)

Are employers legally required to manage the risks from mobile working?

The simple answer is yes! – employers have a duty to manage, as far as it is reasonable to do so, any risks arising from peoples work. Use of mobile devices such as laptops, tablets and smartphones carries a risk of musculoskeletal injury and eye strain, and those risks need to be managed as far as reasonably practicable by employers.

Employers have a general legal duty of care towards their employees. This legal duty is set out in Section 2 of the Health and Safety at Work etc. Act 1974 (HASAWA).

HASAWA Section 2 puts a legal duty on employers to a) make employees work safe, b) make sure that the equipment they use for work can and is used safely, and c) to make sure employees understand the risks they are exposed to and what is required of them to manage those risks. Employees are legally required to take care of themselves and others at work, which will include correct use of equipment and work methods that employers provide for managing the risks.

These legal principles are just as relevant to employee's use of mobile devices a they are to any other work equipment.

Assessing and managing the risks

The Management of Health and Safety at Work Regulations 1999 state the following:

Regulation 3(1)(a) Every employer shall make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work

Regulation 4 Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.

Schedule 1 (this is essentially the hierarchy of risk controls)

(a) avoiding risks;
(b) evaluating the risks which cannot be avoided;
(d) adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;
(e) adapting to technical progress;

(g) developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;
(i) giving appropriate instructions to employees.

All of these principles would apply to mobile working. Research has identified clear links between mobile device use and musculoskeletal disorders and digital eyestrain (click here for our free guidance document which reviews up-to-date research). These are risks, presented by mobile working, which employers (and employees!) have a legal duty to manage.

Proactive management of mobile working risks - stay on the right side of the law

Proactive management of mobile working risks - stay on the right side of the law
The DSE Regulations and the HSE Guidance (the ACOP or Approved Code of Practice) were written before smartphones and tablets as we now know them. However the DSE regulations and the HSE guidance (L26) can still be applied.

Regulation 1(4)(d) excludes only portable DSE that is not in prolonged use. The DSE Regulations do apply to portable DSE in prolonged use – which can include laptop and handheld computers, personal digital assistant devices and some portable communications devices.

L26 states there are no 'hard-and-fast' rules on what constitutes 'prolonged' use.

L26 also states that portable equipment that is 'habitually' in use by a DSE user for a 'significant' part of normal work, should be regarded as covered by the DSE Regulations.

L26 does not define habitual or significant. However it states that where use of the equipment is more or less continuous on most days, people should be regarded as users. It is unlikely anyone would dispute this; if someone is using mobile devices continually on most days they are DSE users and the same steps of risk management, assessment, intervention, training etc. should clearly apply. But what about people using them regularly, frequently even, for sustained periods but not continually?

Our recommended threshold for defining and assessing mobile DSE use

Our guidance sets our the concept of a 'sustained period' of mobile work, which we define as 15 minutes continuous mobile work or longer. Having a duration threshold is useful because it sets a clear 'line in the sand' for employers and cuts through the fog of what constitutes 'habitual' or 'significant' in L26, which are phrases liable to a high degree of subjectivity in their interpretation.

It is important for us to make clear the relationship between our 15 minute sustained mobile work period and the HSE's 'prolonged' work period. The logic we use to reach 15 minutes as a recommendation is as follows:

  1. The figure of 1 hour continuous or near continuous work is given in the guidance as a threshold for classing someone as an (office) DSE user (L26 para.15).
  2. 1 hour is also a general rule of thumb work period before a rest break (office DSE).
  3. This 1 hour rest break period is based in part on increased risk of discomfort and / or injury if the work period is exceeded, points 1 and 2 complement each other well.
  4. Based on our review of research, it is clear that 1 hour continuous work in a poor mobile working arrangement is too long for a basic threshold for triggering a risk assessment.
  5. Research cited in our free guidance document indicates that break intervals at 15 minutes are associated with reduced levels of discomfort, compared to longer intervals between rest.
  6. L26 also states that you may need to take more frequent rest breaks when mobile working.
  7. Leading researchers recommend changing postures every 15 minutes (click for link) when using tablets and laptops when mobile working.

This 15 minutes threshold we define as a trigger for risk assessment. We do not intend it to be seen as a limit for mobile working. It is possible to set up a good, ergonomic mobile workstation, which will mean you can work for longer periods before needing rest breaks - comparable to office DSE use.

Looking beyond 15 minutes sustained work

In our view defining a 'significant part' of someone's work should take into account the nature of the work. The mobile work which many people do is a critical part of their role, it involves entering and processing information, transferring information etc. and in many cases it could certainly be argued that it is a significant part of peoples' work.

L26 states that "While some of the specific minimum requirements in the Schedule may not be applicable to portables in prolonged use, employers should still ensure that such work is assessed and measures taken to control risks." This can be interpreted as an acknowledgement that the guidance is broadly focused on desks and workstations, and it's prescriptive requirements may not be applicable to use of mobile devices. However, it is still clear from this statement that the use of these devices should be assessed.

Appendix 3 of L26 gives some useful information on use of portable equipment. Our Mobile Working Risk Management System incorporates the useful elements from L26, but also adds detail, includes an evidence base for our guidance, and brings it up to date with current technology and the recent and rapid trends towards mobile working.

DSE regulations or Management regulations - take your pick!

Ultimately even if your interpretation of the regulations and HSE Guidance leads you to a view that the DSE Regulations do not apply to regular and sustained use of mobile devices, it is clear that based on the Management of Health and Safety at Work Regulations 1992 and the general duties under HASAWA, that UK employers still have a legal duty to actively manage potential health risks arising from mobile working.
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