Should we be considering health and safety now?

The Government published its strategy for reopening the country on 11 May 2020. It also published the COVID-19 Secure guidelines, which contain recommendations for working safely during COVID-19. Increasing numbers of businesses are reopening or planning to reopen shortly. As an employer, you have legal duties in respect of workplace health and safety and so you need to be taking steps to make sure it is safe for your business to operate during COVID-19. If you are not currently operating, then you should still be considering health and safety now in order to plan for effectively for the future.

What are my legal duties for my employees?

Your general statutory duty requires you take all reasonably practicable steps to ensure the health, safety and wellbeing of your employees. The duty is contained in s.2 Health and Safety at Work etc Act 1974 (“HSWA”). You also owe each of your employees a common law duty to take reasonable care for their safety and to avoid exposing them to unnecessary risk.

Do I owe a legal duty to anyone else?

Yes, you have a statutory duty to conduct your business in such a way as to ensure, so far as is reasonably practicable, that non-employees who may be affected by your business are not exposed to risks to their health or safety (s.3 HSWA). You also have a statutory duty to ensure so far as reasonably practicable that your premises are safe for non-employees (s.4 HSWA). You may owe a common law duty of reasonable care to a non-employee in some circumstances too, for example if they are on your premises or working under your control.

What does ‘reasonably practicable’ mean?

What is reasonably practicable is a question of proportionality and will depend on the circumstances. The law requires that you weigh the level of risk (taking into account severity of harm and likelihood of it occurring) against the cost (whether in time, trouble of money) of measures necessary to avert the risk. When the level of cost of the preventative measures is grossly disproportionate to the level of risk then your duty is discharged.

What happens if we don’t take steps to comply with our legal duties?

Failing to comply with your statutory duties is a criminal offence and may lead to enforcement action being taken against your company and in some circumstances its senior management. Enforcement action can range from a notice (telling you to stop doing something or to put something right) through to prosecution. There is no requirement of any actual harm to occur for an offence to be committed. If you breach a duty of reasonable care, then the individual you owed the duty to will have grounds for a civil claim against you. If they can prove that your breach caused them reasonably foreseeable harm they may be entitled to damages.

What do we need to do to comply with our legal duties as they relate to COVID-19?

You need to carry out a risk assessment and identify work and workplace hazards arising from COVID-19 and take steps to implement control measures to minimise the risk they present so far as it is reasonably practicable to do so.

How should we assess risk?

You are required by law to carry out a risk assessment. Your risk assessment must be thorough and cover risks to employees and non-employees alike. HSE recommends that you assess risk in the following way: identify the hazard for each identified hazard: identify who might be harmed as a result of the hazard and how identify who is at risk from the hazard identify existing control measures identify further control measures you can implement assign responsibility for further action to a named person record a deadline for completing any outstanding actions document the date of completion There is no strict legal requirement that you document your risk assessment, but organisations employing more than five people must record the outcome of the risk assessment in writing and must also make a record of any group of employees identified as being at especially high risk. We think that in order to be adequate your COVID-19 risk assessment will need to include the following hazards: persons infected (or potentially infected) with the virus transmission through the air transmission through contact with surfaces How these hazards manifest may vary depending on factors like environment, workforce, etc. The World Health Organisation (“WHO”) guidance on managing COVID-19 in the workplace, titled Considerations for public health and social measures in the workplace in the context of COVID-19, points out that in order to account for the varying levels of risk present in work the risk assessment should be carried out for each specific work setting and each job or group of jobs, in every case considering the environment, the task, the threat, if any (e.g. for frontline staff), and the availability of resource to manage it. The situation with COVID-19 is constantly changing and so you must keep your risk assessment under regular review. If there is reason to suspect that the arrangements are no longer valid or there has been a significant change then you must review your assessment and update it accordingly. It is extremely important that you do not overlook the impact your new safe system of work will have on other areas of health and safety. Arrangements already in place to manage more routine risks may no longer be effective because of the impact of coronavirus on the workplace. You should therefore review your existing arrangements with a view to making adjustments to them to make sure they remain effective. Particular areas we envisage will need to be considered include: Moving and handling First aid Lone working Fire safety

Is there any guidance I can use to inform my risk assessment process?

Yes. There is considerable amounts of guidance now available to help you with your risk assessment and introducing a safe system of work. We have already mentioned the international guidance published by WHO above. The principle domestic guidance is contained in the Government’s COVID-19 Secure guidelines (here https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 ). This consists of eight separate guideline documents, each of which relates to a different work types/workplace environment. The Government has produced the guidelines in consultation with the Health and Safety Executive, trade bodies and trade unions. It says the guidance is based on the best evidence available. Current guidelines cover the following workplaces: Construction and other outdoor work Factories, plants and warehouses Labs and research facilities Offices and contact centres Other people’s homes Restaurants offering takeaway or delivery Shops and branches Vehicles The COVID-19 Secure guidelines are essential reading and so you should familiarise yourself with those which are relevant to your business. They contain fundamentals for a safe workplace as well as recommendations which you can use to guide your risk assessment and plan your safe system of work. There is also guidance from the Health and Safety Executive (“HSE”) titled working safely during the coronavirus outbreak (here https://www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm ) which you should review. Finally, Public Health England (“PHE”) has published guidance for employers on use of Personal Protective Equipment (“PPE”) in non-clinical settings (here https://www.gov.uk/government/collections/coronavirus-covid-19-personal-protective-equipment-ppe ) which we consider essential reading. Our view is that the aforementioned domestic guidance from Government, the HSE and PHe ought to form the basis for your safe system of work. That said, it’s important to realise that the guidance does not have any legal authority and it does not displace your legal duties. Ultimately, what is reasonably practicable to reduce risk to a minimum (and so to comply with your legal duties) is for you to determine based on your risk assessment. In addition to the official guidance mentioned above you should also have regard to any guidance published by trade bodies, trade unions, regulators or other organisations which is specifically directed at your sector.

Do you have a risk assessment template I can use?

We have worked with Foley and Baugh, health and safety advisors and training professionals on a risk assessment template document and a risk assessment considerations aide memoire document. We are grateful to our friends at Foley and Baugh for making a free template risk assessment available to our clients. Please feel free to download and adapt for your own use. Inevitably, the document is generic in nature and we cannot warrant that it is suitable and sufficient for any particular workplace. Should you need specific legal advice or expert health and safety advice please get in touch. RA Template RA Aide Memoire

Do I need to share the results of my risk assessment?

There is no legal requirement for you to do this but the COVID-19 Secure guidelines say that you should share the results of your risk assessment with your employees and, if possible, you should consider publishing it on your website. If you employ over 50 employees then there is an expectation that you will publish the results of the risk assessment on your website. If you have documented your risk assessment effectively then you could share the outcome by simply sharing the risk assessment itself. If you do this, you must ensure that no personal data of any kind is included in the version of the risk assessment you share.

What should our safe system of work look like?

This will vary depending on all manner of factors and you should be guided primarily by the findings from your risk assessment. The guidance referred to above, which will inform your risk assessment, contains lots of recommended control measures, and the universal hazards that apply in respect of COVID-19 mean there are some control measures all businesses should be introducing. These are encapsulated in the COVID-19 Secure guidelines as follows: Develop cleaning, handwashing and hygiene procedures You should increase the frequency of handwashing and surface cleaning by: encouraging people to follow the guidance on hand washing and hygiene providing hand sanitiser around the workplace, in addition to washrooms frequently cleaning and disinfecting objects and surfaces that are touched regularly enhancing cleaning for busy areas setting clear use and cleaning guidance for toilets providing hand drying facilities – either paper towels or electrical dryers Help people to work from home People should continue to work from home wherever possible and employers should take all reasonable steps to help people work from home by: discussing home working arrangements ensuring they have the right equipment, for example remote access to work systems including them in all necessary communications looking after their physical and mental wellbeing Maintain 2m social distancing, where possible If working from home is not an option then where possible, you should maintain 2m between people by: putting up signs to remind workers and visitors of social distancing guidance avoiding sharing workstations using floor tape or paint to mark areas to help people keep to a 2m distance arranging one-way traffic through the workplace if possible switching to seeing visitors by appointment only if possible Where people cannot be 2m apart, manage transmission risk Where it’s not possible for people to be 2m apart, you should do everything practical to manage the transmission risk by: considering whether an activity needs to continue for the business to operate keeping the activity time involved as short as possible using screens or barriers to separate people from each other using back-to-back or side-to-side working whenever possible staggering arrival and departure times reducing the number of people each person has contact with by using ‘fixed teams or partnering’ Your arrangements should also provide a method for screening employees to identify people at increased risk of harm from the virus and enable you to manage the increased risk. This may mean making reasonable adjustments to their working arrangements or providing additional measures for their safety (see below).

Do I need to record my working arrangements?

If you have five or more employees then the law requires you document your arrangements in writing. This applies to arrangements for managing risk from coronavirus just as it does any other health and safety arrangements.

Is there a legal duty to consult your workforce on your arrangements?

Normally, consultation is with trade union or other representatives. If there are no existing representatives then as the employer, you must not appoint the representatives yourself, but you can invite your workforce to appoint volunteers. If none are forthcoming then you will have to consult the workforce directly. If you are a small business, this may be preferable anyway.

How do we implement our arrangements effectively?

In order to implement your control measures effectively you will need to ensure that you supply the resources, information and training necessary for them to work. If you don’t, then you won’t be operating a safe system of work. To give an example: increasing the frequency of cleaning will only be an effective measures if you supply the additional cleaning products required to keep it up. The material you supply must be fit for purpose and you must maintain the workplace, supplies and equipment, replacing it as necessary. Once you have implemented your arrangements you need also need to monitor them to make sure they are working. This includes monitoring your workforce to make sure they are complying with the arrangements. Changes may be necessary if things are not working as planned.

If training is necessary to implement your arrangements then you will need to provide it. As a minimum, you’re going to have to provide adequate information about your new system of work to ensure staff understand what is required of them in order for it to work. If you choose to provide PPE (see below) then you must ensure staff required to use it are trained in its proper use. Remember: you may also need to review training needs in relation to hazards where your safe working arrangements have changed, for example for moving and handling.

What about people who can continue to work from home?

Those who can work from home are being advised to continue to do so by Government and the COVID-19 Secure guidelines are clear that Government expects employers to facilitate this wherever possible. As such, our view is that you only facilitate employees returning to the workforce where necessary for them to be able to perform essential work until the position changes. This is because in our view facilitating home working where it is viable is an obvious reasonably practicable step an employer can take to minimise transmission. As an employer, you have the same health and safety responsibilities for home workers as for any other workers, so you should continue to stay in touch with them and make sure they can work safely. HSE has said that the temporary nature of home working resulting from lockdown means that workstation assessments are not required but this may change if it continues, and there may be exceptions to this general rule, so you should listen to your home workers and be responsive to any genuine concerns they raise. Those working from home may become isolated and their mental wellbeing may be impacted by the arrangements. Make sure you stay in touch with home workers and continue to monitor their wellbeing. The HSE guidance on managing home workers is here. https://www.hse.gov.uk/toolbox/workers/home.htm

Can we require an employee return to work?

Yes, provided the employee cannot do the work from home and provided you’ve completed an adequate risk assessment and effectively implemented arrangements to minimise risk from coronavirus at work so far as is reasonably practicable. You should not be requiring staff to return to a work space unless you are satisfied it is safe to do so. An exception may apply where people have been categorised as clinically extremely vulnerable or clinically vulnerable (see below). However, you should be aware that an employee has the right not to be subjected to any detriment if they raise health and safety concerns or remove themselves from the workplace because they reasonably believed there to be a serious and imminent danger – see further guidance below.

Can we refuse to allow an employee to return to work if we are concerned about their health and safety?

Yes. Your employees owe a statutory duty (at s.7 HSWA) to take reasonable care for their own health and safety and that of other persons who may be affected their acts or omissions at work and they also to co-operate with you so far as is necessary to enable you to comply with your health and safety duties. So, if you are requiring an employee to stay away from the workplace for health and safety purposes, then your employee must comply with those directions and if they fail to do so you could have grounds for disciplinary action. This may leave you in a situation where you have employees unable to work from home but who are also unable to return to the workplace.

Can an employee leave to work because of health and safety concerns?

Under s.44 Employment Rights Act 1996, an employee has the right not to be subjected to any detriment by any act done in circumstances of danger which the employee reasonably believed to be serious and imminent. This could protect them if they chose to leave a workplace environment due to a reasonable belief of a serious and imminent risk of contracting COVID-19 The grounds under s.44 will always be fact dependent and vary on a case by case basis but in circumstances where those grounds are made out and continue to exist then a member of staff could legally refuse to work in the office. In our view, if you have implemented effective arrangements for managing risk so far as is reasonably practicable, it will be difficult for an employee to rely on s.44 to refuse to return to the workplace for any lengthy period of time. More likely is that an employee will be able to rely on the protection afforded to them by s.44 to remove themselves from a particular part of the workplace or from the workplace for a short time due to circumstances giving rise to an increased risk of COVID-19.

Can an employee refuse to return to work because of health and safety concerns?

An employee’s refusal to return to work based on a belief that they will be at risk of contracting COVID-19 could be protected under section 100 of the Employment Rights Act 1996 (ERA 1996), which protects employees from dismissal on the grounds of absence from work if that absence was due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not reasonably have been expected to avert that danger). The concept of danger is wide and could include the risk of contracting COVID-19 from an infected colleague, patient or client, although the danger would need to be reasonably believed to be serious and imminent. By taking all reasonably practicable steps to minimise risk from coronavirus you should minimise the likelihood of this situation occurring.

Can I take disciplinary action against an employee refusing to return to the workplace or refusing to come back to the workplace?

Yes, but you should do so only as a last resort. First, consider whether the concern is reasonably held. You should discuss concerns with employees and see if you can take steps to resolve them. This may be sufficient to resolve the situation. In the event that an employee refuses to return to the workplace despite your having taken every reasonably practicable step to minimise risk then you could look at furlough or the use of paid or unpaid leave. If you consider disciplinary action appropriate then in all but the most clear-cut of circumstances but we advise taking legal advice before you do so. The situation is particularly challenging because in order to rely on s.100 or s.44 of the Employment Rights Act the employee it is the employees reasonably held belief that affords them the protection.

What about employees who may be at increased risk of harm from coronavirus?

Those categorised as clinically extremely vulnerable or clinically vulnerable are considered to be at increased risk of harm from COVID-19. There is also evidence to suggest that certain other groups are at increased risk (BAME, those over 65, men). In order to meet your legal duties, your risk assessment and safe system of work need to account for employees at increased risk and additional precautions may be required for these employees. Introducing a screening system to identify employees at increased risk will enable you to plan how best to manage their work arrangements safely. The COVID-19 Secure guidelines say that those who are clinically extremely vulnerable should continue to shield and remain at home. We do not suggest doing anything else since in our view it will be difficult to defend a system of work requiring these people to come into the workplace. People who are clinically vulnerable are supposed to take extra care to maintain social distancing but the guidance does not preclude them from coming into the workplace if they are unable to work from home but they should be given the safest roles available in order to enable them to maintain social distancing. Many at increased risk of harm will also enjoy protection under the Equality Act 2010, which entitles them to protection from unlawful discrimination. This probably includes those who are clinically extremely vulnerable and possibly also those who are clinically vulnerable, since both may qualify as having a disability for purposes of the Equality Act.

The Equality Act 2010?

The Equality Act 2010 protects people from discrimination on the basis of one or more protected characteristics, which are as follows: age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation Discrimination can be direct or indirect (where discrimination is not the intended purpose but nonetheless results). The Equality Act says you must make reasonable adjustments to prevent discrimination occurring. This means you may need to introduce reasonable adjustments if your safe system of work would otherwise result in unlawful discrimination. This could mean adjusting working arrangements (to allow clinically extremely vulnerable people to work from home for example) or applying your safe system of work flexibly (in order to maintain access to disabled facilities or to avoid interference with a right to wear religious clothing for example). Keep this in mind as your plan your system and once it is operational, making adjustments as necessary.

What if discrimination is unavoidable in our system of working?

Discrimination is permitted in limited circumstances. In order for discrimination to be lawful it must be a consequence of a proportionate measure that achieves a legitimate aim. This is called objective justification. Unlike indirect discrimination, direct discrimination can only ever be lawful on the basis of age. The health and safety of others is a legitimate aim, meaning direct discrimination on the basis of age or indirect discrimination may be lawful as part of your safe system of work if reasonable adjustments cannot be introduced to avoid it.

What about people living with vulnerable persons?

The COVID-19 Secure guidelines are clear that employers should have in place measures to accommodate such employees. There is an arguable case that failing to have measures in place will result in discrimination by association and so be unlawful unless there is an objective justification for it. The safest approach is one which is accommodating of employees in these circumstances and prioritises the safety of those concerned.

Do we need to provide PPE to employees?

This will depend on your risk assessment. If your assessment is that PPE is necessary in order to reduce risk so far as reasonably practicable then you will need to provide it. The law says that suitable PPE is required except where and to the extent that the risk has been adequately controlled by other means which are equally or more effective. The COVID-19 Secure guidelines and HSE’s guidance on safe working is not recommending PPE as a preventative measure outside of clinical settings other than in a limited number of circumstances provided for in guidance published by PHE (here: https://www.gov.uk/government/collections/coronavirus-covid-19-personal-protective-equipment-ppe ), which includes a recommendation for a minimum amount of PPE to be provided for cleaning in non-clinical settings where there is known or suspected COVID-19 contamination. The approach to PPE provided for in domestic guidance appears narrower than, but broadly consistent with, the guidance published by the WHO ( https://www.who.int/publications-detail/considerations-for-public-health-and-social-measures-in-the-workplace-in-the-context-of-covid-19 ), which recommends PPE outside of health facilities for cleaning which may cause splashes and where there is High exposure risk, which includes providing domestic services or home care for people with COVID-19, and contact with dead bodies of persons who were known or suspected of having COVID-19 at the time of their death. Ultimately, all of the published guidance leaves decisions on PPE as a matter to be determined by the employer on a case by case basis. Remember that guidance is not equivalent to the law and that you must take steps to minimise risk so far as reasonably practicable because that is what is required by the law. Your risk assessment is your best tool for determining what control measures you need to in order to do this. PPE is proving a contentious topic so we suggest that you take care to clearly document in your risk assessment any decision taken on PPE and the basis for it, referencing any guidance that has informed your decision.

Can I require my employees provide their own PPE or charge them for PPE I provide?

If you decide PPE is required as a control measure then you will need to provide it free of charge. The law also requires that you: provide PPE that is appropriate for the risk and conditions of use (by way of prior assessment) use PPE that is effective in controlling the risk it is intended to address ensure PPE fits correctly and is suitable for the user taking into account health conditions ensure PPE is compliant with any minimum standards required of it by law maintain, replace and safely store the PPE provide information and training on its proper use introduce a system of work for its safe use

What about face coverings?

The COVID-19 Secure guidelines distinguish “face coverings” from PPE, describing them as simple coverings for the mouth and nose and not the same as “surgical masks or respirators used by health and care workers” or the type of PPE worn to “minimise risks like dust and spray in an industrial context”. Such distinction is novel but would seem logical given the strict legal requirements that apply to PPE and which face coverings could not hope to meet. The Guidelines do not require face coverings be provided to workers but point out that they “may be worn in enclosed spaces where social distancing isn’t possible” and that there may be some evidence of them being “marginally beneficial” as a “precautionary measure” to prevent the spread of virus to others. Consequently, they recommend employers allow employees to use them and support them to do so. Since many employees will choose to adopt use of face coverings in work or for commuting to and from work it will be essential for employers to introduce arrangements to manage their safe use in the workplace, including arrangements for safe disposal. The system proposed in the COVID-19 Secure guidelines is as follows: wash your hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it when wearing a face covering, avoid touching your face or face covering, as you could contaminate them with germs from your hands change your face covering if it becomes damp or if you’ve touched it continue to wash your hands regularly change and wash your face covering daily if the material is washable, wash in line with manufacturer’s instructions; if it’s not washable, dispose of it carefully in your usual waste practise social distancing wherever possible Whatever process you introduce, you must take steps to promote it and ensure staff understand and comply with it.

Am I responsible for my employees during their commute?

Employers are not currently responsible in law for the health and safety of their employees during commutes to and from work but we cannot rule out absolutely a possibility that the courts extend the duty as a matter of public policy. We suggest employers follow the steps set out in the COVID-19 Secure guidelines regarding flexible or staggered work start and end times and facilitating alternative commuting arrangements since these will impact safety in the workplace (by reducing congestion at access/exit point for example) or may be necessary as reasonable adjustments to prevent discrimination (by providing parking for a person who is clinically vulnerable for example). However, we would advise against interfering with employees arrangements during commutes.

What about work related travel?

Work related travel is treated differently to commuting because employees are counted as being ‘at work’ and so your legal duties apply. You must ensure your safe system of work covers work related travel and time spent working away. Guidance and common sense says keep any work related travel to a minimum and limit travel on public transport to the absolute minimum. You’ll also need to make sure any work vehicles are cleaned between uses and may need to consider adjustments to them to make them safe to use (introducing dividing screens for example). If staff are required to stay overnight on work business then the COVID-19 Secure guidelines suggest keeping a log of where staff are staying and ensuring accommodation maintains social distancing. We suggest you do the same for any locations your staff are required to visit for work purposes too and suggest you may want to go further than just ensuring social distancing is maintained instead seeking confirmation that the COVID Secure guidelines are being followed.

Do we need to tell staff about confirmed infections?

In our view your health and safety duties means you need to notify staff if they have potentially been exposed to COVID-19 in the workplace. This may occur if member of your workforce is confirmed as or suspected of having contracted COVID-19. When you decide what information to share and with who you need to balance your health and safety duties with your data law obligations and your duty of confidentiality which you owe to each individual employee. In almost every case it should be possible to notify affected employees of an exposure risk without having to disclose personal data. If staff are suspected or confirmed as having contracted COVID-19 then they should not be allowed into the workplace and should be required to follow guidance and isolate at home ( https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance ).

Do I need to report instances of coronavirus in the workplace under RIDDOR?

In certain limited circumstances, yes. To find out more read our article here

Coronavirus (COVID-19) FAQs: managing a safe return to work

2 JUNE 2020

| 1 min read

Amidst the unfurling of the coronavirus lockdown and easing of restrictions, here is a summary of the key health and safety issues businesses need to consider when planning how they will manage a safe return to work.

We have prepared over 30 FAQs to guide you through the process of managing a safe return to work for your business and employees.

Coronavirus (COVID-19) FAQs: managing a safe return to work

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