From Office to Home: Employment Law in a Hybrid World

Since the emergence of COVID-19, many employers have increasingly integrated flexible and hybrid working arrangements into their businesses. While these arrangements have largely been welcomed by employees, they also introduce legal practical risks that can expose employers to liability if not properly managed.

Working from home (WFH) is often treated as an informal arrangement by both employers and employees. However, under the law, a home office is still a workplace which means that employer obligations do not stop at the office door, and failing to recognise this can create significant compliance risks. It is therefore essential for employers to have appropriate systems, policies, and oversight in place to ensure their legal obligations are met in respect of employees who are WFH.

In this issue, we explore some of the key risk areas which may leave employers liable when their staff are WFH.

Work Health and Safety Risks

While an employee may be WFH, this does not reduce or alter an employer’s obligations to ensure compliance with applicable Work Health and Safety legislation, namely the Work Health and Safety Act 2011 and Work Health and Safety Regulation 2025. Employers must take reasonable steps to identify, assess, and manage risks associated with the remote and hybrid work arrangements, including physical hazards, environmental risks and psychosocial factors, rather than treating WFH as an informal or low-risk alternative to the traditional workplace.

WFH as an informal arrangement, or relying solely on employee discretion, can create serious issues if the employers’ policies are lacking appropriate systems to mitigate risks.

How can Employers Ensure They are Meeting Their Obligations?

1.      Implement a clear WFH policy

Employers should have a written WFH policy that clearly sets expectations around safety, availability, and work practices. The policy should make it clear that the employer’s duty of care under NSW work health and safety legislation continues to apply while employees are working remotely. As recommended by SafeWork NSW, this should be supported by a risk assessment or hazard checklist addressing the employee’s home-work environment, with identified risks addressed before the arrangement commences. Please read and implement in your workplace if appropriate Comcare’s (the National Work Health and Safety Compensation Authority) WFH checklist here. 

2.      Actively monitor and review remote work arrangements

Meeting work health and safety obligations requires more than a once-off approval process. Employers must demonstrate an ongoing, proactive approach to managing risks associated with WFH. Regular check-ins help ensure that agreed safety measures remain in place and that new risks are identified early. SafeWork NSW emphasises that employers must take “reasonably practicable” steps to manage risks on an ongoing basis, rather than relying on a box-ticking exercise.

3.      Maintain communication and support

Remote work can increase the risk of isolation and psychosocial harm if not properly managed. Regular, meaningful communication—particularly through phone or video rather than email alone—helps employers monitor workload, wellbeing, and role clarity. Maintaining connection not only supports employee mental health but also assists employers in meeting their obligations to manage psychosocial risks, which are a growing focus of work health and safety regulation in NSW.

Managing Underperformance in a Work From Home Environment

Managing underperformance can be challenging in any workplace and, if handled poorly, can expose employers to legal risk. Those challenges are often amplified in a WFH environment, where reduced visibility can make it harder to identify issues early. As a result, performance concerns may go unnoticed until they have escalated, limiting the opportunity for timely feedback and constructive improvement discussions.

To manage this risk, employers should have legally sound performance management policies in place before issues arise. Clear expectations, documented processes, and consistent application are critical in a remote or hybrid setting. Having risk management processes in place helps identify issues early and provide employees with clarity about expectations. At the same time, employers must strike a balance to ensure employees do not feel micromanaged or mistrusted. Focusing on outcomes rather than constant monitoring supports accountability while preserving trust and autonomy in a remote working environment.

1.      Schedule regular check-ins

Having consistent one-on-one meetings (weekly or fortnightly) provide a structured opportunity to discuss progress, identify challenges, and clarify expectations. In a remote environment, these conversations are critical to replacing informal office interactions and ensuring performance issues are identified early, before they escalate. Regular check-ins also demonstrate ongoing support and procedural fairness.

2.      Set clear and measurable weekly goals

Agreeing on specific, achievable weekly objectives helps employees clearly understand what is expected of them and how their performance will be assessed. Clearly defined goals reduce ambiguity, support accountability, and allow performance to be measured by outcomes rather than visibility or time spent online.

3.      Maintain shared visibility of priorities and deliverables

Using shared task lists, project management tools, or written summaries helps ensure both employers and employees have a common understanding of priorities, deadlines, and workload. This transparency reduces the risk of miscommunication and allows performance concerns to be addressed objectively, rather than relying on assumptions or delayed feedback.

Key Takeaways

• Working from home remains a workplace for legal purposes, and employers’ obligations under work health and safety laws continue to apply.

• Employers must take proactive and ongoing steps to identify and manage physical, environmental, and psychosocial risks in remote and hybrid work arrangements.

• Clear working-from-home policies, supported by risk assessments and regular review, are essential to managing compliance and liability.

• Managing performance in a hybrid workplace requires clear expectations, regular communication, and outcome-focused performance management, rather than constant monitoring.

 Feel free to contact our team for practical and timely advice.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

---