Shared & Halved – Planning for a safe return to work

As part of our IHL series of webinars looking at the most pressing issues in light of the unique challenges posed by coronavirus COVID-19, on 27 May we hosted a webinar to answer some of your questions about how employers can plan for a safe return to work.

Introduction

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. In this webinar we looked at issues around keeping employees and third parties safe as businesses resume work but the pandemic continues. Below are our key tips and takeaways.

The legal framework

• HSE or Local Authority 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 etc. 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.

How should employers make the workplace COVID-19 secure

• Faced with risks in the workplace and need to get the balance right so it is safe.
• Number of guidance documents issued – look at these on the government website or HSE website.
• Duty is to make the workplace safe so far is reasonably practicable. Duty is on the Employer.
• Adopt the hierarcy of control principle.
• Key is not to overcomplicate and keep very simple. Start with a risk assessment and identify all relevant control measures you can put in place to control the risks.
• The advice is still that if can work from home then do.
• Hygiene and social distancing are key in the workplace.
• Consult with the workforce as they know the business environment best and may have useful ideas.
• Risk assessment doesn’t need to be signed off by a lawyer but we can help with any suggestions or look at any challenges.
• Implementation of risk assessment is largely around communicating this to the workforce and ensuring it is being monitored and the rules are being followed.
• Risk assessment should be dynamic and revisit it when new advice comes out.

Practical tips on social distancing measures 

• Follow the guidance as this helps with some of the measures.
• More difficult to manage in office but some useful measures include:
  • back to back or side working rather than face to face.
  • Fixed team or partnering so not mixing different groups of people.
  • Tape on the floor.
  • Move desks around.
  • One-way systems.
  • Avoid queues.
  • Stagger start times.
  • Encourage people to use the stairs.
  • Think about communal areas.
  • If you use it, clean it policy.
  • Encourage employees to bring lunch to work rather than visiting shops.
  • More active and visible cleaning so employees can see it is being carried out.
  • Keep period of working together short so not with other people for a long time.

Personal protective equipment (PPE)

• If you need PPE to do job then must continue to use it.
• HSE expectation is that ‘proper face masks‘ are required only in healthcare settings.
• PPE in the workplace where it’s not usually required is therefore only a last resort. Doing the social distancing and other measures need to be done first.
• As use of face coverings not a legal requirement, difficult to require of your employees (if they don’t want to).
• There is also a danger that wearing a face mask then encourages the bad habits of being close together.
• Encourage people, don’t try to enforce – engagement is key.

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 the following:
  • Staggering working hours.
  • Providing face masks if requested for the commute.
  • Can you avoid peak times.
  • Keep anyone travelling together (in vans for example) the same.

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).

Health of employees

• Inevitable that will be asking employees about health  as part of any risk assessmemnt process but need to carefully consider whether can justify your approach under and comply with GDPR  GDPR  so need to think about carrying out a DPIA and how asking and if asking is necessary.
• Also for GDPR purposes need to think about how will the data be held and in what format (can you anonymise or ensure individual is not identified from it).
• Welfare checks are a sensible thing to think about so identify vulnerable staff or those that require special protection or reasonable adjustments.
• Some employers thinking about temperature checks and thermal monitoring to control/ limit the transmission. But problem is that they can be very invasive so need to do DPIAs  and really considerwhy you are doing and whether there is another way given the GDPR issues arising and what happens if employees refuse.
• If an employee refuses to come back to work then need to understand why and talk to them about their concerns first before considering disciplinary or other action. If health related or otherwise vulnerable or require special protection then need to look at other ways to get them back to work so they feel safe. Must continue to learn, adapt and be flexible.

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, with the use of improvement/prohibition notices or prosecution being used in more obvious examples of non-compliance. 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.
• Key is to set-up the measures and to communicate these to employees so you obtain engagement and ideally agreement.
• 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).

Useful Links

• Shared & Halved – Business Leaders series: Planning for a safe return to work
• ICO - Workplace testing – guidance for employers