With an increase in both inspection and enforcement activity by the HSE and local authorities, we look at what you can do to keep your workplace Covid-secure, employees safe and how to avoid potential warnings or prosecution.
Current position
Back in the autumn of 2020, employees were encouraged to return to work as lockdown restrictions loosened. But since the start of January 2021, the message in lockdown 3.0 is ‘work from home if you can’. Some employees, though, have no choice about where they work – they may be an essential worker or they may be required to attend their workplace because they cannot physically carry out their job from home.
Whether at home or at work - employers are under a legal duty to ensure their employees and any visitors’ health, safety and welfare is protected. Notwithstanding the fact that this is a disease that is prevalent in the community, employers must still take action to ensure adequate control measures are in place in the workplace to guard against the risk of transmission.
“Employers are under a legal duty to ensure their employees and any visitors’ health,
safety and welfare is protected.
HSE spot checks
The HSE has stated that it is carrying out spot checks and inspections on all types of businesses. It is also working with trained and approved partners to ensure they can visit as many workplaces as possible. Several clients have received such visits across a range of sectors and a recent conversation with two HSE inspectors confirmed that they are spending “almost all their time” on Covid.
When visiting, the HSE will want to see the workplace risk assessment. They will also inspect the adequacy of the hygiene practices and social distancing measures. Perhaps, more importantly, they will speak to your staff and observe them to confirm compliance (or a lack thereof). What will your staff say about the adequacy of the measures in place? Are you ensuring that only those staff that need to be in the workplace are there and that you are not over the capacity in your risk assessment?
Whistleblowing
As well as spot checks, employees are worried about returning to work and are reporting concerns about non-compliance to the authorities and evidencing non-compliance on social media via smart phone cameras. You may recall the photos that reached the internet of the inside of the DWP’s offices in Leeds where employees were not social distancing. This results in contact being made by the authorities with the employer either by way of telephone or site visit.
A poll of employees, conducted by Honeywell and Wakefield in November 2020 (before the latest lockdown kicked in), revealed that 71% of respondents did not feel completely safe in their workplace, with 51% worried about contracting coronavirus by coming into contact with contaminated surfaces.
Faced with the prospect of having to return to work, it is easy to see why the number of whistleblowing complaints has increased for employees who are worried about their safety. Some of these complaints will be genuine but some may be malicious too. On the whole, employers will be doing their best to comply but regardless of the number of control measures that have been implemented, having to deal with the authorities scrutinising your systems is yet another unwelcome distraction at what is already a difficult and challenging time.
“As well as spot checks, employees are worried about returning to work and are reporting concerns about non-compliance to the authorities.
Our experience of enforcement action
You would expect to see enforcement action being taken when there are no or inadequate control measures in place. However, we have seen companies issued with enforcement action even though they have introduced and implemented a risk assessment; social distancing; signage; temperature screening; information dissemination; and availability of hand sanitiser. Such enforcement action can be by way of either a notice of contravention (identifying a material breach), a prohibition notice (requiring you to stop something) or an improvement notice (requiring you to take action within a certain time period).
We have seen enforcement action being taken on the basis that there had been a failure to fully consider and control the risk in relation to cross contamination from common and high touch points. Some touch points were cleaned twice a day, but this was still considered insufficient.
Prosecution is reserved for the most serious breaches and we are not yet aware of any covid specific prosecutions.
How to comply?
The HSE has a wealth of information available on its website in relation to what steps an employer should take in order to make its workplace covid secure.
As well as the obvious measures such as social distancing and good hygiene practices, it is imperative that employers consult with their employees. It’s an uncertain and unnerving time for everyone. Quite often, many concerns can be allayed through good communication and ensuring that employees are well informed and looked after.
It’s easy to keep an eye on employees while they are physically in the workplace but it is harder for those that are out of sight. Make sure they don’t become out of mind too.
Regular contact makes employees feel less isolated and abandoned which in turn helps reduce stress and mental health worries.
It’s a difficult time for everyone at the moment but there is certainly a big glimmer of light at the end of the tunnel.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.