The Prime Minister's announcement on Sunday that those who could not work from home should be "actively encouraged to go to work" in England has been followed by the publication of the Government's COVID-19 recovery strategy and eight accompanying guides (the "COVID-19 Secure guidance") on how to ensure workplaces are as safe as possible.
In this update, we consider the legal and practical implications of this latest development, and what this means for employers going forwards.
The legal position
In terms of the regulations governing the activities of businesses introduced earlier on during the pandemic, very little has changed. The categories of businesses that are considered essential and those that should close to the public remain the same. The latest guidelines therefore represent a shift of emphasis for those businesses that are caught somewhere in between – encouraging businesses to use their existing discretion. However, employees who are able to work from home should continue to do so and employers should not be rushing to throw open their doors to accommodate those employees who can continue to work remotely.
Employers' health and safety obligations ultimately remain unchanged and employers must continue to take reasonable steps to ensure a safe place of work. It is therefore vital that employers carry out, and continuously update, risk assessments to identify the extent to which they could be exposing individuals to risk of infection and what could be done to reduce those risks. The Government has laid down a clear expectation in the COVID-19 Secure guidance that employers with more than 50 employees should publish their risk assessments on their websites, with smaller employers encouraged to do likewise.
While the COVID-19 Secure guidance will assist in carrying out these assessments, the Government has made it clear that the guidelines only hold the status of non-statutory guidance. The COVID-19 Secure guidance does not therefore supersede employers' legal obligations relating to health and safety in any way and employers will need to consider how to translate the guidance into specific actions that they need to take depending on the nature of their business. Employers should also keep a careful watch for updates, as experience of other Government guidance in the current environment would suggest the COVID-19 Secure guidance is liable to be frequently updated without fanfare.
The Government has also reminded employers in its guidance that they have a duty to consult their employees on health and safety. The Health and Safety Executive ("HSE") recommends that employers consult and involve employees in the steps they are taking to manage the risk of COVID-19 in the workplace.
In addition to their health and safety obligations, employers must also be mindful of the myriad of other applicable employment laws. In particular, employers need to give thought to their obligations under employees' individual contracts of employment, their obligations under the Equality Act 2010, the provisions relating to "clinically vulnerable" and "clinically extremely vulnerable" people in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350) and data protection obligations in respect of medical data. This is not intended to be an exhaustive list of considerations, but a reflection of the complicated picture faced by employers who are considering re-opening their workplace and a reminder of the wide range of factors which employers will need to consider.
Practical steps for employers to take
The steps an employer will need to take to discharge its obligations will vary depending on a number of factors, and the starting point will be the relevant COVID-19 Secure guidance. However, where working from home is not an option, there are a number of steps which employers would be advised to take regardless of size, workplace or industry, while adhering to social distancing rules as far as possible.
Entering and exiting the workplace
Entrances and exits should ideally be separated to better manage the flow of people into and out of workplaces. Employers should ensure that all employees are subject to a temperature check on arrival. The use of lifts should be limited and the use of stairs encouraged. Ideally stairs will be one way only. Start, lunch and finish times should be staggered to avoid overcrowding. Employers may want to provide a lunch delivery service, to prevent the need for employees to exit and re-enter the workplace during the day and to reduce the overall volume of movement within the workplace during the working day.
Hygiene
Employers should ensure that they provide, and have sufficient stocks of, hand sanitiser and disinfectant wipes for use by employees. Frequency of cleaning should be increased, with deep cleaning of the workplace carried out on a regular basis. Whilst the nature of the PPE required will vary, all employees should be given the option and provided with a minimal level of PPE: masks and gloves should be readily available throughout the workplace. Where possible, employees should not be allowed to use the same workstations or equipment. Where that is unavoidable, additional cleaning and enhanced PPE should be provided to minimise risk.
Communal/group spaces and facilities
All communal spaces and facilities should be closed unless absolutely essential. Strict physical distancing should be operated in kitchens or printer rooms, with a one in one out (or similar) policy operating throughout the day. Physical meetings should not take place in person unless essential. If they are essential, strict physical distancing between attendees should be enforced. Ensure that workstations are a minimum of two metres apart. If this means reducing the number of workspaces available, consider rotating staff who work in the workplace.
Monitoring/Reporting
Employers should ensure that all employees attending work are aware of the symptoms of COVID-19 and that they are required to report to the employer immediately if they, or anyone they live with or have had recent contact with, displays any symptoms. Sensible employers will ensure that there is a dedicated phoneline/email that is regularly monitored for employees to make such a report, as well as a process to immediately take the necessary steps to prevent any possible further spread.
Employers would also be advised to carry out regular surveys to allow those experiencing the impact of the measures on the ground to make suggestions on the adequacy of current measures and propose future improvement.
Enforcement and consequences of getting it wrong
In terms of enforcement, the HSE previously announced that it will continue to investigate reported concerns from the workforce or the public where people are being exposed to risks from work activities. However, in a statement on Monday the Prime Minister declared that "…we're going to have a lot more inspections by the Health and Safety Executive (HSE), we'll have a random spot inspections to check that companies are doing the right thing", which suggests that the HSE will step up their monitoring activity.
Infringement is a criminal offence and a successful prosecution may result in an unlimited fine and/or imprisonment. Directors are personally liable, and can be disqualified, for the health and safety failures of their company where the failures occur through the director's consent or neglect. This is the case even where no harm results from the offence – there only has to be a risk of harm.
In addition to criminal sanctions, breaches of health and safety law also expose employers to negligence claims brought by employees or other affected third parties. However, by meeting your responsibilities under health and safety laws, you will considerably reduce the risk of being found negligent in a civil action. While such claims may be difficult for employees to bring given the difficulties that surround causation (i.e. showing that they caught the virus at work), the reputational damage associated with defending such a claim is likely to be significant.
Conclusion
Health and safety compliance and ensuring a safe workspace for their employees will be one of the key challenges facing employers as they plan their return to work after lockdown. While the Government's guidance has gone some way to provide employers with a clearer picture of how to reopen their workplaces safely, employers will need to think carefully about how it applies to their specific situation. Compliance will be a continuous exercise and employers will need to assess and update their approach as the situation progresses.
Practical guidance for COVID-19
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