Covid-safe workplaces ‘a challenge’ for employers

Out-Law News | 09 Feb 2021 | 10:38 am |

Zoe Betts tells HRNews that HSE enforcement action is a risk but will be rare
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  • Transcript

    Almost half of complaints to the UK’s health and safety regulator have been about employers failing to implement social distancing rules. So how big is that problem for employers and what, exactly, are the risks? This is research cited by People Management in an article they ran last week with experts warning that firms that fail to make their premises Covid secure could face reputational damage and tribunal claims. The main concern is around social distancing. The research by GQ Littler reveals that of the 5,585 reports about coronavirus risks received by the HSE since last year, 48% per cent raised concerns about that. Of those, a quarter were made towards the end of last year, in October and November, suggesting that well into the pandemic, employers were still struggling with the practicalities of making workplaces Covid secure – that's the main point being made. So what is our assessment the risk employers are facing? To help with that I spoke to health and safety specialist Zoe Betts who joined me by video link from Chester. I asked her whether she agreed with that statement that employers are still struggling:

    Zoe Betts: “Yes, it's an interesting point that, and I'm not exactly sure that 'struggling' is the word that I would use. I think employers probably fall into a few different camps. I think there may be some employers out there, and this is very wrong, but they're really not making that much effort to implement COVID secure measures, but on the flip side, and I see a lot of this amongst my client base, there are some organisations making tremendous efforts to implement the right control measures but that doesn't necessarily mean that employees will feel safe - I think that's a different issue - and I think there has to be some recognition that this is a community acquired virus so it's almost impossible, in fact it probably is impossible, for an employer to be able to say that they have eradicated the possibility of transmission in the workplace - that's not going to be possible - but what employers need to do is take the right steps, from a risk assessment point of view, so that they know what the control measures should be for their particular workplace and that's a bespoke risk assessment. Then they need to be able to communicate that to their employees and I think that's the reassurance that workers might need. Socially distancing is only one of the hierarchy of measures. I think from a practical perspective employers clearly need to be thinking about keeping people at home where possible, facilitating home working, split shifts, reducing the number of people that are in the same place, as well as cleaning regimes, PPE and social distancing. So there really is a range of measures and even if all of those have been put in place there will be some employees who simply don't feel safe, not necessarily because of the workplace but perhaps because of other issues such as commuting to and from work, or because they live with someone who's extremely vulnerable and there will be a residual sense of unease wherever that person goes. So I think there are a number of things that employers can do but they will not be able to solve this issue - it's a global pandemic affecting the community. So they have a role to play but they can't be the answer."

    Joe Glavina: "The article quotes a lawyer who says 'complaints filed with the HSE could lead to investigations, enforcement notices and prosecutions'. Of course that's possible, but is it a real risk?

    Zoe Betts: "Yes, that's a good question and I think the emphasis there, is that a real risk is a risk? It is a risk and there's no way I'm going to sit here and say that HSE don't have the power to impose improvement notices, prohibition notices, and indeed, instigate legal proceedings and prosecute, they do have those powers they always have had. Do I really think that the HSE is going to issue a glut of notices and a raft of prosecutions? No, I don't. I think the HSE take a pragmatic and a measured view, and that's to be welcomed. They have undertaken tens of thousands of visits in workplaces to date, but relatively few notices have been issued. There have been some notification of contravention letters but that's not what we deem to be enforcement action. That's an indication that the HSE acknowledge that the employer has taken some steps, but perhaps they haven't gone far enough. My own view is that improvement and prohibition notices, and certainly prosecutions, will be rightly reserved for those very extreme cases where an employer is refusing to, in any way, implement the correct measures that should be taken to reduce the risk of spread of this virus and in fact, maybe, ignoring concerns of employees and maybe ignoring previous advice and guidance from HSE inspectors or public health bodies. It's in those quite unusual and extreme cases, I feel, that we will see enforcement notices and prosecutions and I think the reference to 'name and shame' is perhaps a little bit out of context because we generally only see that with the HSE when they've successfully prosecuted an organisation for health and safety breach and then there's a press release afterwards. I don't actually think that amongst this pandemic the HSE is going to be holding out organisations and certainly not where there is evidence that those organisations have tried to do the right thing. That's probably not going to help anybody in the current circumstances."

    Joe Glavina: "Last question Zoe. The article finishes by saying HSE has said it would carry out spot checks to make sure businesses are secure. Is that right?"

    Zoe Betts: "It is right, as a matter of fact, that the HSE are carrying out spot checks but I think we've got to keep that in its proper context. I think there's a scale and a resource issue here. I think the truth is, and the HSE would accept this, that as a result of budget cuts that go back to 2010, way before this pandemic was on anybody's radar, the HSE don't have the boots on the ground to actually conduct the number of spot checks that would perhaps keep certain sectors happy, or the unions happy, or make certain elements of the workforce feel safer. I think they're doing their best and there have been a number of spot checks and they have started doing proactive inspections of certain workplaces. What they won't be able to do is visit all of the workplace throughout the country, it's simply not possible and it wouldn't have been possible before the pandemic. I know that they've taken on board some third party assessors to try and carry out some physical inspections and spot checks but those people don't have the powers of HSE inspectors, they're not invested with the legal powers of The Health and Safety at Work Act, and I know that a lot of the checks are being conducted over the telephone, which some people don't think is enough. So I think it's fair to say spot checks are happening and employers must be alive to that and I think from a practical perspective, my advice would be - be ready to deal seriously and appropriately if you are the recipient of one of those visits. Make sure that that visit goes well, make sure that you have your COVID-19 risk assessment to hand, make sure it has been recently reviewed and updated, make sure that you've got a point of contact who can deal with the HSE inspector or the assessor in a way which is entirely professional and polite and that you put yourself on the best foot forward basically, that you demonstrate that you are taking the pandemic seriously, you've got health and safety of your employees and your visitors and your contractors as an utmost priority and you're doing all that you can. I think in those circumstances you are likely to get through that visit with a successful outcome and there shouldn't really be any follow up action for that company to be worried about."

    There are, of course, many health and safety challenges for employers during this pandemic. You can find news of the latest developments, and commentary from the Health Safety team, on the Outlaw website.