Shared & Halved – Business Leaders series: Planning for a safe return to work

As part of our Business Leaders series of webinars looking at the most pressing issues in light of the unique challenges posed by coronavirus COVID-19, on 15 May we hosted a webinar to answer some of your questions about how employers can plan for a safe return to work.

Introduction

Coronavirus COVID-19 is a crisis unlike any other we have faced as a country, presenting a new and varied set of challenges to UK and global businesses.

Based on what you’ve told us is most pertinent to you in the current climate, we have devised a series of webinars aimed at you, business leaders, to look at implications of the outbreak. In this webinar we looked at issues around keeping employees and third parties safe as businesses resume work but the pandemic continues. The panel comprised Joanne Sear (Regulatory lawyer, Shoosmiths), Emma Morgan (Employment lawyer, Shoosmiths), Ian Hatherly (Operations Director, Southalls) and John Southall (Managing Director, Southalls) and was chaired by Hayley Saunders (Regulatory lawyer, Shoosmiths).  Below are our key tips and takeaways.

The legal framework

• HSE guidance is available, plus sector specific guidance from the government (8 sectors so far, more guidance expected).
• Guidance is just that and not, in itself, the law. Underpinning law is the general obligation on employers in the Health and Safety at Work Act 1974 to ensure ‘so far as is reasonably practicable‘ the health, safety and welfare at work of all employees. This will include protecting employees from risks associated with COVID-19.
• What is ‘reasonably practicable‘ will depend on the particular circumstances of every case, but wherever possible, follow the appropriate guidance; if you are not following the guidance, record the reasons why.
• Risk assessments (and ensuring they are followed) are vital.

Risk assessments

• No COVID-19 specific template or methodology is required by the HSE.
• Look at the hierarchy of control. Don’t over complicate matters; are your control measures sufficient and reliable? Make sure people know what they are.
• Personal risk assessments will probably not be necessary, but you might need to include more controls for vulnerable groups.

Social distancing

• Follow the guidance.
• Remind people why your measures are in place (beware ‘social distancing fatigue‘ in the afternoons)
• Practical measures might include: provision of sanitising bays in specific areas, ‘runway‘ signs on floor to control direction of flow, use of screens next to counters.
• Confined spaces present particular difficulties (which should be covered in your risk assessment). Practical measures might include: restricting numbers in kitchen areas and prohibiting shared crockery, adopting ‘knock before you enter‘ policy for toilet facilities, having specific ‘passing places‘ in stairwells.

Personal protective equipment (PPE)

• HSE expectation is that ‘proper face masks‘ are required only in healthcare settings.
• Otherwise, work down your hierarchy of control, face coverings likely to be required only if social distancing cannot be achieved by other measures. It must be the last resort.
• As use of face coverings not a legal requirement, difficult to require of your employees (if they don’t want to).

Travel to work

• As a matter of law, a daily commute to and from your place of work is not deemed to be ‘at work’ for the purpose of safeguarding your employees but best practice to consider it as part of your overall approach to reducing the risk.
• So think about eg staggering working hours, providing face masks if requested.

Communication

• Management involvement is important, send out updates explaining what steps you are taking, and engage regularly with your employees. Visible evidence of the measures being taken (e.g. cleaning) will also help.
• Make sure your people know what the COVID-19 symptoms are, and what to do if they/someone they know display them.
• Check, in general terms, on your employees’ welfare (but just be aware there can be privacy/data protection issues with specific health questions).

Duty to report

• Obligation on employer under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) to report if employee diagnosed as having COVID-19 AND reasonable evidence it was caused by exposure at work.
• Clearly fact specific, but think about eg whether the employee came into prolonged close contact with another infected person at work, which would mitigate in favour of reporting? Or was the employee protected by social distancing and/or other measures, which would mitigate against it?
• Whatever your decision (to report, or not), keep a record of your reasoning.

Getting it wrong

• HSE has indicated it will take a ‘pragmatic and proportionate‘ approach to enforcement, so likely to look at advice and guidance in the first instance, rather than use of improvement/prohibition notices or prosecution. But possible HSE will come under pressure to take more proactive approach in the weeks ahead.
• Action against individuals is possible but probably unlikely unless there has been a knowing and deliberate disregard of what is required.
• Steps taken by employers to reduce any risk of criminal liability will also reduce the likelihood of civil claims (and personal injury claims will involve other issues e.g. as to causation).

Returning to work

• Communication with your employees is key. They will have genuine fears and anxieties; make sure you understand their concerns, and explain what you are doing to address them.
• Try to be flexible; so if, e.g. childcare is a concern, think about changing hours, changes to the role that allow them to work from home, offer unpaid leave or even using accrued holiday. Additional measures might be needed to support those who require additional protection eg pregnant employees.
• In the final analysis, employees should follow a reasonable management instruction to return to work when it is safe to do so, and taking the sort of steps outlined above will hopefully minimise the risk of employee grievances or claims.

Working from home

• Temporary working from home during the COVID-19 crisis is not, in health and safety terms, the same as being a ‘home worker‘.
• Employees should be given some guidance on safe working, and how to get advice if they need it (consider e.g. online training), but generally no need to visit people at home to carry out individual risk assessments.
• Think about measures to support mental health and wellbeing (this really is essential), eg encouraging interaction with colleagues, reminders to take exercise, how to access help if needed.

Final thoughts

• No need to have fire drills while social distancing required (potential risks outweigh benefits) but remind people what to do if fire alarm goes off (and reference this in your risk assessment).
• No need to change the air conditioning system at your premises, keep maintained as normal.
• Follow government guidance on managing visitors.
• Temperature checks of employees are not required in the guidance and employers should approach such checks with caution as the results may be unreliable. There are also privacy/data protection/consent issues to consider here.

For details of future, and recordings of past, webinars in the Business Leaders series, please use the link here.

You may also find our recent article ‘How to lift the lockdown’ helpful – a link is provided here.