Out-Law / Your Daily Need-To-Know

Coronavirus: operational UK health and safety

Out-Law Guide | 16 May 2020 | 12:19 pm | 10 min. read

For as long as the threat of infection from Covid-19 remains, businesses will have to perform a balancing act between safeguarding the health risks employees face in the workplace from potential exposure to the virus and the safety risks that new working practices may present to employees and to others.

On 10 May 2020, the UK government made it clear that people should be getting back to work if their employer isn't on the list of businesses that must remain closed and if they are unable to work from home. It is for employers to ensure that people can work safely.

Businesses will have to review and assess what the risks to employees and others will be from a return to work. The Department for Business has set up a number of working groups, and has now published guidance for various sectors. There is also much to be learned from the adaptations to working practices already made by businesses which have stayed open during lockdown.

General employer health and safety duties

Employers have clear legal duties under health and safety law. There are three overlapping general obligations:

  • duty to protect the health, as well as safety, of their employees;
  • duty to protect others who may be exposed to health risks as a result of the employer's activities, including members of the public, service users and contractors;
  • duty to manage the health and safety risks from workplaces under the employer's control, which includes the means of access to the workplace and any plant such as lifts and air conditioning systems. The extent of the duty depends on the level of control.

The duty is to do everything "reasonably practicable" to manage these risks. The onus of demonstrating that everything reasonably practicable has been done falls to the employer. The best way to demonstrate compliance with the law is usually to follow government and industry-led guidance wherever possible.

Metcalfe Katherine

Katherine Metcalfe

Legal Director

Risk assessments will need to be kept under close review to ensure that they are effective in practice and that they are responsive to the likely changes in law and guidance as restrictions are lifted or tightened again.

Legislation introduced by the UK government and devolved administrations will also have safety implications. Scotland and Wales have written certain 'social distancing' requirements into law, for example the duty to maintain two metres between workers wherever possible. In England, these requirements are contained in guidance from Public Health England (PHE).

Central role of risk assessment

Risk assessment will play a crucial role in the return to work process. Once a decision has been taken to return to work, it will be vital for businesses to carry out a thorough review of risk assessments to ensure that appropriate control measures are put in place to eliminate the risks associated with returning to work or, where that is not possible, to minimise them.

As well as minimising the risk of the workforce contracting Covid-19, employers will need to be mindful of the potential risks associated with working in new ways in order to implement social distancing rules, and with managing any absences among key supervisory staff due to self-isolation requirements.

Risk assessments and working practices should take account of the latest guidance from the UK government and the devolved administrations. They will need to be kept under close review to ensure that they are effective in practice and that they are responsive to the likely changes in law and guidance around which businesses can reopen, use of public transport and requirements around personal protective equipment (PPE) as restrictions are lifted or tightened again.

Employers are required to consult with their employees about any arrangements put in place to control the risks associated with the coronavirus, and good communication will be essential to ensuring that these measures are effective.

Specific employer health and safety duties

Employers have specific legal duties which might be relevant to the return to work process, including:

  • management of health and safety including risk assessment, safe systems of work and providing information, instruction, supervision and training to employees;
  • the provision and use of PPE;
  • the safe use of equipment and machinery at work;
  • management of the workplace, including cleanliness, ventilation, sufficient space, toilet and wash facilities and safe pedestrian routes;
  • the use of chemicals and substances hazardous to health, and managing the risks posed by biological agents such as Covid-19.

Government guidance

The UK government issued guidance to help employers get their businesses back up and running and workplaces operating safely on 11 May. There are currently eight separate guides for different types of work, with further guides due to be published for other work in the coming months.

All the guidance focuses on five main points:

  • people should work from home where they can;
  • employers should carry out a Covid-19 risk assessment, in consultation with workers or trade unions. Businesses with more than 50 employees are expected to publish the results of this risk assessment on their website;
  • two-metre social distancing should be maintained where possible. This may require employers to redesign workspaces, stagger start times, create one-way systems, open more exits and entrances and change seating in breakout rooms;
  • where two metres cannot be maintained, the transmission risk should be managed - for example, through barriers in shared spaces, changing shift patterns, fixing teams to minimise contact or ensuring colleagues face away from each other;
  • reinforcing cleaning processes and providing more handwashing facilities and hand sanitiser.

Additional guidance has been published by the Health and Safety Executive (HSE). It identifies issues employers should consider when assessing risk and potential control measures.

RIDDOR reporting

The HSE has issued guidance on reporting cases of Covid-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). The guidance states that a report must only be made if:

  • an unintended incident at work has let to someone's possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence; or
  • a worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.

The examples given by the HSE in the guidance relate to workers who are directly in contact with the virus in a laboratory (for dangerous occurrence reporting) or in a healthcare setting (for disease reporting). It is therefore not envisaged that every case of Covid-19 in the workplace is reported, and detailed consideration must be given to the individual circumstances when they arise for a decision on whether to report to be made. Businesses should follow PHE and industry-specific guidance to manage the workplace environment, for example by invoking social distancing wherever possible. This will limit the likelihood of a RIDDOR report being required.

Enforcement

Where the HSE identifies employers which are not taking action to comply with the relevant law and guidance to control public health risks - for example, employers not taking appropriate action to socially distance, or to ensure workers in the 'shielded' category can follow NHS advice to self-isolate for the period specified – they will consider taking a range of actions to improve control of workplace risks. This ranges from the provision of advice to employers through to issuing enforcement notices to help secure compliance.

The police also have the power to enforce social distancing in the workplace in Scotland and Wales.

Health and safety when working from home

The return to work is likely to be on a phased basis. Those who can work from home may need to continue to do so for a period while others begin to return to the workplace.

Employers have the same health and safety responsibilities towards those working from home as for any other workers, and the HSE has issued specific guidance on protecting home workers. In particular, employers should consider:

  • how will you keep in touch?
  • what work activity can be done from home and for how long?
  • can this work be done safely?
  • do you need to put control measures in place?

If workers are working at home on a long-term basis the risks associated with using display screen equipment must be controlled. This includes carrying out workplace assessments, although this is not necessary in temporary situations. The HSE has published a workstation checklist (10-page / 2.9MB PDF) which will assist with this. See our Out-Law analysis: Display screen equipment: health and safety rules for lockdown.

Mental health duties towards home workers

It is important to keep in touch with lone workers at home and ensure regular contact to make sure they are healthy and safe. Lack of contact can affect stress levels and mental health, and it is important to put systems in place to recognise signs of stress as early as possible.

UK health and safety law requires employers to look after the mental health, as well as physical health, of employees.

Employers should ensure that they have conducted an overall high level risk assessment or updated existing risk assessments and implemented reasonably practicable control measures in relation to managing mental health and wellbeing. This is particularly important for employees with new working arrangements, whether that be in the workplace or from home; but also those continuing with previous working arrangements, who may be at higher risk from catching Covid-19 or be impacted by the coronavirus in other ways; as well as employees that have been furloughed.

Employers need to take both:

  • pro-active steps – including implementing or reviewing policies and procedures, keeping in contact with employees and signposting them to help and support that is available and making sure all staff are aware of the causes of stress (which could well be different in the current climate) and how to avoid them; and
  • re-active steps – recognising the signs or responding when employees raise concerns or are demonstrating symptoms of poor mental health so that early interventions can be made and appropriate support provided.

If an employer becomes aware that particular employees are struggling with their mental health it should conduct individual risk assessments, working with each employee. These should be monitored by the employer and updated as and when the need arises - for example, if the company becomes aware that the risk to the employee has increased or the control measures implemented aren't effective and need to be reviewed.

See our Out-Law analysis: Coronavirus: the hidden impact on employee mental health.

Infected employees and health surveillance

Employees need to be reminded of the rules for self-isolating if they or a member of their household suffers from a new continuous cough or a high temperature: seven days isolation for someone showing symptoms from the date the symptoms started; and 14 days isolation if a member of their household has symptoms.

Employers may be considering whether to implement some form of health surveillance to check for symptoms, such as temperature checks. This should only be considered if a risk assessment deems it to be an appropriate control measure: such as in workplaces where employees can not work from home and social distancing rules can not be implemented. However, care must be taken with this approach as results could be unreliable and not everyone that is infected will have a temperature. Issues around consent, invasions of privacy and data protection also need to be considered.

Practical return to work health and safety advice

Limiting numbers

  • social distancing will almost certainly restrict the number of people who can safely be in the workplace at any one time. Reassess the layout of work stations to implement physical distancing, and take a realistic view of how many workers can be accommodated;
  • where facilities are shared with other employers, coordinate your return to work procedures with what they are planning;
  • assess the risks around third parties entering the workplace, as there is a legal obligation to ensure their health and safety too;
  • where employees continue to work from home, continue to consider their needs in terms of display screen equipment and lone working.

Information, instruction, supervision and training

  • communicate clearly and early with employees on your plans to reopen and any new policies you wish to introduce. Consider providing guidance and establishing protocols on any workplace measures to be adopted;
  • early engagement with trade unions should help ensure understanding and cooperation, whether or not the employer recognises the trade union. Union engagement may be required where changes to working hours and other terms and conditions are needed. More generally, unions and staff representative bodies may help to communicate guidance to employees and provide a route for them to raise questions or concerns;
  • brief line managers and HR staff on company policy, using an FAQ guidance sheet. Ensure there is a consistent message to all employees on the process and company policy;
  • display HSE signage around the workplace to raise awareness of measures to prevent the spread of Covid-19.

PPE

  • keep up to date with the latest guidance on the use of PPE. Employees must be given the correct PPE and work equipment for their job if they are required to come into work;
  • employers should also ensure that they have adequate stocks of PPE, and may need to consider what other measures to put in place if the supply of PPE is disrupted.

Cleaning

  • put in place practical measures to support workplace cleanliness such as hand washing facilities, additional hand sanitiser stations, antibacterial wipes and appropriate signage, and check and re-stock these regularly;
  • consider how access to communal areas such as toilets, coffee points, canteens, gyms and other staff facilities can be controlled. Increased cleaning will also be necessary.

Travel

Getting to work and business travel remain key areas of risk.

  • consider working hours and arrangements, including ways to limit the number of staff commuting at peak travel hours or staggering start and end times to minimise the risk of infection - for example, creating two cohorts with half the department working from home and half in the office each day in order to balance operational efficiency with practical measures;
  • continue to reduce or cancel non-essential business travel and encourage employees to conduct meetings via videoconferencing software. Where this is not possible, provide additional guidance on essential business travel and the expectations of the company in order to ensure employees have sufficient guidance;
  • where employees and contractors are required to complete questionnaires on recent travel and health information, third parties should also complete these before entering the premises. Employers must ensure any questionnaires are compliant with data protection legislation.