Out-Law Guide | 16 May 2020 | 12:19 pm | 10 min. read
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.
Employers have clear legal duties under health and safety law. There are three overlapping general obligations:
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.
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).
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.
Employers have specific legal duties which might be relevant to the return to work process, including:
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:
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.
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:
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.
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.
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:
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.
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:
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.
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.
Getting to work and business travel remain key areas of risk.
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