Unfurling coronavirus lockdown: employers' health and safety duties

Health and safety: complying with your legal duties whilst planning for a return to work

An employer’s primary statutory duty derives from ss.2-3 Health and Safety at Work etc Act 1974 and requires it exercises all reasonably practicable steps to ensure the health, safety and wellbeing of its employees and others affected by its undertaking. Employers also owe individual employees a common law duty to take reasonable care for their safety and not to expose them to any unnecessary risks.

Employers, in preparing for a return to work during the coronavirus outbreak, must now familiarise themselves with relevant guidance and take reasonably practicable steps to assess risk in the wake of the coronavirus and introduce a safe system of work. A safe system of work means one that is effective at minimising transmission of the virus, but which also continues to address the myriad other risks present in the workplace.

Navigating the guidance

There is a wealth of official guidance published to assist employers in this endeavour and it can be difficult to keep on top of it all. This guide is intended to assist.   

In addition to the documents signposted here, you should also familiarise yourself with any sector-specific guidance which may apply to your business, such as guidance from trade bodies, unions, regulators and professional representative bodies. If you are an NHS organisation, then you should also consult the guidance published by NHS England and NHS Improvement. 

Government COVID-19 Secure guidelines

Eight guidelines have been published, each corresponding to a different work type.

The guidelines have been produced "… in consultation with industry experts to help ensure the various categories of workplaces to which they relate are as safe as possible" and are based on evidence of "…what has worked elsewhere in the world, and the best available scientific theory."

The eight workplaces for which guidelines have already been published are as follows:  

• Construction and other outdoor work
• Factories, plants and warehouses
• Other people’s homes 
• Labs and research facilities
• Offices and contact centres
• Restaurants offering takeaway or delivery
• Shops and branches
• Vehicles

Note: employers with over 50 employees must publish their coronavirus risk assessment and all employers should display the provided poster to demonstrate to staff that they are following the guidance.

Health and Safety Executive (HSE) guidance

HSE operates a coronavirus (COVID-19) mini page, which can be accessed here.

Of particular interest will be the two short guides published this month.

Working safely during the coronavirus outbreak - a short guide

HSE recommended steps that employers should take to help manage the risks of coronavirus. These include taking measures to work at home where possible, maintaining social distancing, cleaning and hygiene.

Talking with your workers about working safely during the coronavirus outbreak

It is a legal requirement that you consult with your employees (or their representatives) on health and safety and this guide is about how to complete that process for optimal results.

Guidance from HSE (not coronavirus specific) on how to complete an effective risk assessment is available here and may be of interest to those unfamiliar with the process. 

Public Health England guidance

A number of guidance documents have been published, of note:

Guidance for employers and employees on coronavirus

This guide focuses on what employers need to know to be able to operate safely, highlighting key principles, symptoms of infection and basic precautions.

Guidance about coronavirus personal protective equipment (PPE)  

This includes guidance in non-clinical settings, including cleaning in non-clinical settings. PPE is not being recommended as a general preventative measure outside of clinical and certain other specified settings, but its use is ultimately a matter for the employer following detailed risk assessment. 

Government guidance on travel during the coronavirus pandemic

The Government has published guidance on travel during the coronavirus pandemic. 

An employer’s statutory health and safety duties do not extend to travel to and from the workplace and, in our view, it is unlikely that the common law duty will be extended to cover commuting to work during the pandemic either. However, employers should, insofar as it is reasonably practicable for them to do so, follow the recommendations in the COVID-19 Secure guidelines about working from home, staggering work start/end times, and facilitating commuting by alternative means.

We hope this article assists in directing you to some of the important published guidance from key authorities on health and safety. We will shortly be producing an FAQ document to deal with popular health and safety related queries we have been receiving.