Working safely during COVID-19


24th July 2020

Our experts have put together a detailed guide for employers on working safely during COVID-19. This information is correct as of 24 July 2020 but please be aware that guidance is constantly being updated. If you need legal advice on making your place of work COVID-19-secure, contact us.

In summary, in the context of the ongoing COVID-19 pandemic, all employers operating in England and Wales (or across both regions) should:

  • Comply with the emergency coronavirus related legislation that is in place in the region within which they operate
  • Comply with existing workplace health and safety legislation (Health and Safety at Work etc. Act 1974 and associated regulations) that is applicable in both England and Wales
  • Have regard to COVID-19 related public health and workplace health and safety guidance issued by the UK and Welsh Governments
  • Have regard to COVID-19 workplace safety guidance issued by the UK Government and the Health and Safety Executive (“the HSE”)
  • Undertake a COVID-19 specific risk assessment and identify the necessary control measures to be implemented in their workplaces
  • Consult with staff and share with them the significant findings of their COVID-19 specific risk assessment to include displaying a COVID-19 Secure Notice to that effect in relevant workplaces (see below)
  • Consider publishing the results of their COVID-19 specific risk assessment on their website (if they have 50 or more employees)
  • Ensure their response to the pandemic is led by their senior management teams.

In summary, notwithstanding the differing messaging, devolved lockdown regulations and devolved public health guidance (as summarised below), employees should only return to a workplace if it is safe for them to do.

1. General

The administration of public health is devolved, and businesses operating in both England and Wales, will need to operate in accordance with the relevant devolved lockdown regulations. Consequently, employers must have a clear understanding of the devolved lockdown regulations and accompanying guidance if they are to be compliant. There are some areas where the lockdown regulations/guidance in England and Wales differ.

The position in England

To facilitate the reopening of physical workspaces and the transition of greater numbers of employees back into workplaces in England, the UK Government has issued overarching working safely guidance to incorporate ‘5 steps to working safely – practical advice for businesses to take’ (“the 5 Steps”). This guidance was last updated on 23 July 2020. Please click here. The 5 Steps are to be considered by employers in conjunction with the accompanying cross sector Working Safely Guides (currently 14 in total) insofar as they are relevant to the employers’ business.

The messaging within the initial versions of the Working Safely Guides was that everyone should work from home unless they cannot work from home and businesses should make every reasonable effort to enable working from home as a first option. However, today’s updated guidance represents a clear change to that message and is being seen as encouragement for business to return to their workplaces from 1 August 2020:

Indeed, the wording contained within the recommended Covid-19 Secure Notices (please click here) has changed from:

We have taken all reasonable steps to help people work from home

to:

We have taken all reasonable steps to help people work safely from a COVID-19 Secure workplace or work from home

The UK Government is expected to issue further work-related guidance on 1 August 2020.

All of the above guidance should be considered by employers alongside the following HSE guidance:

The position in Wales

For businesses in Wales, the Welsh Government’s message remains that people should continue to work from home if they can. The following guidance remains in place:

The Welsh Government has also issued sector specific Working Safely Guides for employers in Wales that reflect its overarching message that people should continue to work from home if they can. (please click here).

Employers in Wales should remember that 2m social distancing requirement within the workplace (where it can reasonably be implemented) remains enshrined in law whereas in England, social distancing requirements are a matter for guidance.

Guidance in Wales must also be considered alongside the above HSE guidance.

Overview

In short, when considering the reopening of their physical workspaces and/or the transition of greater numbers of employees back into those workplaces notwithstanding the differing regulations and guidance, the key issues to bear in mind are:

  • The risks of coronavirus are the same across the country as are the issues arising from it
  • Employees should only return to their employer’s workplace if it is safe for them to do so
  • The guidance does not introduce any new legal duties or obligations for employers nor do they replace the existing workplace health and safety law. The Working Safely Guides (in England and in Wales) are intended as best practice advice for businesses when thinking about what they need to do to continue, or restart operations during the COVID-19 pandemic i.e. advice on how they can comply with their existing legal duties and obligations in the context of COVID-19
  • The underlying workplace health and safety law has not changed and in summary, an employer’s overarching statutory duties remain as follows:
    • To ensure so far as is reasonably practicable, the health safety and welfare at work of its employees which includes the provision of a safe working environment (section 2 Health and Safety at Work etc. Act 1974);
    • To undertake a suitable and sufficient assessment of the risks faced by its employees at work (Regulation 3 Management of Health and Safety at Work Regulations 1999) which must be recorded and the significant findings shared with staff; and
    • Having undertaken its risk assessment, to implement safe systems of work and communicate them to staff. The safe systems of work must be robustly enforced, monitored and kept under review (this is particularly important in this ever evolving climate).

What is new is that employers’ duties now need to be discharged in the context of COVID-19.

2. Guidance

Whilst the public health/working safely guidance issued by the UK and Welsh Governments and also the HSE does not have the force of law, the starting point is that employers will be expected to act in accordance with the guidance when implementing its COVID-19 related health and safety management arrangements. Accordingly, any departures will need to be justified and decisions will need to be clear, reasoned, evidence based and recorded.  HSE advises employers that: “if you do follow the guidance you will normally be doing enough to comply with the law. Health and safety inspectors seek to secure compliance with the law and may refer to guidance when doing so”. Indeed, on the specific issue of Covid-19, HSE has confirmed that:

As we move into a new phase of supporting a safe return to work across Great Britain, HSE is adjusting the focus of its activities, including visits to business premises and sites which will be conducted in line with social distancing regulations and guidelines. Our activities will continue to be guided by the specific requirements and characteristics of the sectors we regulate and in line with advice from the UK Government and Public Health Bodies.

Indeed, in a recent press release, the HSE has recently confirmed that its inspectors are carrying out spot inspections in cities and towns where there is a coronavirus outbreak, to check that businesses are COVID-19 Secure. Please click here.

3. Risk assessment

At the heart of the all of the above guidance is the need for all employers to undertake a COVID-19 specific risk assessment. Indeed, the expectation of both the UK and Welsh Government is that businesses which employ 50 or more people should consider publishing the results of their risk assessment/s on their website and display COVID-19 Secure Notices confirming the risk assessment has been undertaken and shared with staff.

In conducting their COVID-19 specific risk assessments, employers should think about coronavirus in the context of it being another risk alongside other risks they have already identified in the workplace. Risk assessments need to be suitable and sufficient i.e. they must be specific to the nature of the employer’s operation, its workplaces and its staff – generic risk assessments will not be acceptable. Risk assessments will needed to be reviewed on an ongoing basis.

Having identified the risk from Covid-19 within their workplaces, employers will need to identify the measures that it needs to implement to effectively manage that risk. Employers need to be flexible and creative when formulating their safe systems of work which will be communicated to employees before they return to the workplace. Safe systems of work will need to be robustly enforced and their effectiveness monitored on an ongoing basis.

Employers should be aware of the following comments made by the HSE in the abovementioned press release concerning their spot inspections in Bradford:

Some of the most common issues that HSE and local authority inspectors are finding across the country include: failing to provide arrangements for monitoring, supervising and maintaining social distancing, failing to introduce an adequate cleaning regime – particularly at busy times of the day – and providing access to welfare facilities to allow employees to frequently wash their hands with warm water and soap.

4. Consultation

The need to consult with staff is critical the recommendations set out in the Working Safely Guides and also the HSE guidance: ‘Talking with your workers about preventing coronavirus’ (as referred to above). This reflects current workplace health and safety legislation and best practice.

5. Non-compliance

Employers’ motivation for implementing the most effective health and safety management arrangements in the context of Covid-19 will, of course, be the safety of their staff during their work. However, employers should also be aware that failure to comply with health and legislation in the context of Covid-19 could give rise to enforcement action by the HSE to include the issue of an Improvement and/or Prohibition Notice which are published on the HSE’s website. Criminal prosecution is also an option available to the HSE in relation to non-compliant employers and indeed, with reference to their above mentioned press release, the HSE has commented that:

HSE will support businesses by providing advice and guidance; however where some employers are not managing the risk, HSE will take action which can range from the provision of specific advice, issuing enforcement notices, stopping certain work practices until they are made safe and, where businesses fail to comply, this could lead to prosecution.

5. Health and safety management arrangements

Employers should be familiar with the guidance that has been issued by the HSE in consultation with the Institute of Directors:  ‘Leading Health and Safety at Work – Leadership Actions for Directors’.  This guidance has been in place for some time and is applicable across all of the various sectors (save for further education where there is specific guidance available). Employers are advised to review this guidance and ensure they have in place robust arrangements for monitoring and reviewing their workplace health and safety performance in the context of COVID-19 with a view to ensuring the highest standards of compliance through a Board/senior management led approach to workplace health and safety issues across their entire business.

This article has been co-written by Claire Rawle, Debra Gers and Eve Piffaretti.

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