By Hollie Whyman
On 10 May 2020, the Government announced that those who cannot work from home should be encouraged to return to work unless they working in one of the sectors that remains closed. The Government has since released detailed and sector specific Guidance on working safely during Covid-19: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
For now, the Government continues to advise that those who can work from home should do so. Accordingly, businesses should be making every effort to enable their workforce to work from home where possible. However with the timing of future relaxations uncertain, it would be sensible for employers to now plan ahead for an eventual return to the workplace.
What Health & Safety duties do employers have?
Employers have a duty to ensure - so far as is reasonably practicable - the health, safety and welfare at work of all their employers. Businesses must do all that they reasonably can to set up and implement a system of safe work.
What steps do employers need to take keep their staff safe on their return to the workplace?
There are three key steps that every employer should be taking:
- Carry out a Covid-19 risk assessment tailored to the workplace and the dangers of the virus. Keep that risk assessment under review.
- Set up a safe system of work identified by that risk assessment.
- Take steps to ensure that safe system of work is implemented and followed.
The Government has set out five practical actions that businesses should take: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/5-steps-to-working-safely
What needs to be included in a risk assessment?
The risk assessment should relate to the specific operations of the business. Employers need to think about the risks of people working together and how the virus could be transmitted in the workplace. Once the risks have been identified, employers should consider how each risk can be addressed and how workplaces, equipment and processes can be altered to remove or reduce danger to workers. The completed risk assessment should ultimately inform a coherent policy for preventing exposure to the virus and ensuring a safe system of work.
The Government advises that businesses consult with their workers or trade unions when carrying out their risk assessment and shares the results with the same.
The Health and Safety Executive has a guide to risk assessments here: https://www.hse.gov.uk/risk/controlling-risks.htm. The eight sector Government Guidance contains a framework of the sort of questions businesses should be considering.
What specific legal duties should employers have regard to in respect of the workplace and Covid-19?
Employers should consider the following:
- Surveying staff health so the business knows whether they are displaying symptoms of Covid-19. Keep a record of exposure, for example those with symptoms or self-isolating and those who have tested positive.
- Maintain, ventilate and clean the workplace to guard against the transmission of Covid-19.
- Ensure rooms and desk placement has sufficient space to observe social distancing.
- Enable employees to navigate the workplaces safely away from each other, possibly by setting up one way routes.
- Provide access to suitable toilets and washing facilities for regular handwashing.
- Provide appropriate PPE if the employer cannot adequately control risks to health and safety (e.g. social distancing).
- Appoint staff members to assist in setting up and implementing the safe system of work.
- Ensure employees and visitors to the premises have information on the risks and the steps they must take to reduce/avoid the risk of contracting or passing on Covid-19.
Employers should review and follow the Government Guidance. This is good evidence of what is reasonably practicable and what constitutes a safe system of work. However, employers should be aware that they cannot discharge their Health & Safety duties simply by following the Guidance and so businesses should have careful regard to the specific risks they have identified in their own risk assessments.
What does the Government Guidance say?
Where it is not possible for employees to work from home, they should be required to go to the workplace only where every reasonable effort is made to manage transmission risk by reinforcing hygiene and cleaning measures and complying with social distancing measures, e.g. keeping 2 metres apart from others wherever possible. However, social distancing should not be seen as the one-size-fits all solution, and businesses should have regard to the fact its value will be reduced in certain situations, such as enclosed and unventilated rooms.
If social distancing cannot be maintained in full, then operations and activities should only be continued if they are necessary for the business to operate. However, just because an operation is deemed necessary, it does not follow that it is safe for the business to operate - employers still have a duty to ensure the safety of its workface. In these circumstances, employers should consider full mitigation measures such as:
- Further increasing the frequency of hand washing and surface cleaning.
- 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 (rather than face-to-face) whenever possible.
- Reducing the number of people each person has contact with by using 'fixed teams or partnering' (so each person works with only a few others).
Businesses should refer to the Government's industry specific Guidance for a full list of precautions and mitigation that they should consider for the workplace.
Ensuring the safe system of work is implemented
Once employers have designed their safe system of work, they should ensure the system is properly implemented and maintained. This could include communication, training, signage, repeated instructions and, where necessary, management tools and interventions - including disciplinary measures
Can an employee be disciplined or dismissed for refusing to return to work because of Covid-19?
Yes, however if the employee has a 'reasonable belief' of a 'serious and imminent danger' that cannot reasonably be controlled, then disciplinary measures may amount to an unlawful detriment, and a dismissal may be automatically unfair. Whether an employee's actions not to attend work is reasonable is likely to depend on the extent to which the employer has assessed Covid-19 risks, followed guidance and implemented safeguards or mitigation measures. It may also depend on the vulnerability of the employee and the vulnerability of those with whom they live.
In addition, an employee's refusal to return to work, or their making complaints about the working environment can, in certain circumstances, amount to a Protected Disclosure and so entitle an employee to whistleblowing protection. Â Employers should also take care when compelling a vulnerable or disabled employee who might be more at risk from Covid-19, to return to the workplace. This may lead to potential claims for discrimination, as well as under the Health & Safety legislation.
There is no immunity for employers from potential claims, however the best course of action is to assess risks, follow all guidance, set up and implement all protections they reasonably can, and consult and agree the measures with the workforce. Each case will turn on its own facts, and unfortunately employers may find themselves faced with some difficult questions about what steps they should take. Accordingly, businesses would be advised to seek legal advice on this point.
For further advice, or to discuss your employment matter, please contact Hollie Whyman.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.