11 May, 2020
It is fair to say that last night's announcement has left those Britons desperately seeking respite from lockdown considerably underwhelmed but, now there has been at least some lifting of restrictions on getting in to work, it is a question which some employers have had less than 12 hours to consider.
I am sure that most employers will be familiar with the requirement to assess the risk of injury to employees, to eliminate that risk where practicable, or to reduce it where not; if this is news to you, I suggest that you give me an immediate call. But that is all well and good when we are dealing with obvious physical risks, such as falling off a ladder or sawing your own face off, but what about a silent killer that has no respect for careful and diligent planning? How do you approach risk when employees could just as easily contract the same virus whilst popping into Aldi on their way home from their meticulous clean workplace?
We are starting to see some blurry advice emerge; removing hotdesking, closing in-house cafeteria, staggering working hours etc. All very sensible, and more is due tonight. But how far do you have to go when assessing the risk? What are your obligations as an employer?
There are various pieces of legislation which apply in this situation but the one which most of you will be familiar with is the Health and Safety at Work etc. Act 1974 (HSWA). Section 2 of the HSWA includes an overarching duty on an employer to "ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees." Subsection 2 of that provision is usually dismissed as a list of potential examples but, in the context of a global super-virus, its (paraphrased) obligations become somewhat more compelling:
(a) provision and maintenance of plant and systems of work that are safe and without risks to health;
(b) putting in place arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) provision of such information, instruction, training and supervision as is necessary to ensure the health and safety at work of employees;
(d) maintenance of any place of work in a condition that is safe and without risks to health;
(e) provision and maintenance of a working environment for employees that is safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
Cue a light sweat. You can ensure that cutting equipment is guarded, but can you guarantee that it is sterile? You can clean offices to the Nth degree, but can you prevent an employee bringing the virus to work on their mobile phone? How do you provide work welfare facilities, such as drinking water, food, and a place to congregate, when doing so increases the risk of exposure?
There is a risk that employers will be blinded by the sheer scale of it all. But it is important to understand that the use of "so far as reasonably practicable" pervades most of the HSWA and other health and safety legislation. It is a considerable caveat to otherwise onerous duties, because it is completely open to interpretation. In the context of a pandemic of proportions rarely seen before, "reasonably practicable" accepts that there is a certain amount of risk that you just cannot do anything about.
So, let's take some practical examples:
By their very nature, offices are more likely to find practical ways of keeping their workforce as safe as reasonably practicable. The 9-5 working day has largely fallen by the wayside in preference for flexible and family-friendly arrangements anyway, and technology has become an essential investment, rather than an expensive luxury. With a vast array of often free software available, there is really no excuse for allowing office workers to continue working from home, staggering hours, and banning gatherings by the water cooler.
Ironically, however, it is this very flexibility which could catch some employers out. Offices are a perfect infection environment, and managers' actions will be under close-scrutiny where staff members contract Covid-19 when compared to types of work where social distancing is less easy to implement. Employers should ensure that they have arranged deep cleaning of office environments, circulated new working practices regarding social distancing, and done all they can to provide flexible working arrangements. Meetings can still go ahead by Skype or similar, even within the office, and staff should be encouraged to leave the building for lunch breaks (but not together), open windows, and sit at least two metres apart. In open plan offices with lines of workstations on bench tables, consider removing every other unit and alternating work from home days for all staff.
Here is where things start to get more troublesome. Can you really socially distance on a construction site? The CLC has published a series of guidance documents in recent weeks which has alternately baffled the industry and clarified how it should work. So here is where the "reasonably practicable" comes in. With many operations it is simply not possible to socially distance and, in some cases, it is even more harmful to do so. After all, would you rather risk contracting a virus as a fit and healthy construction worker or work on your own in confined spaces, at height, or with heavy equipment with the risk of death?
Construction employers need to think long and hard about the risks to employees of works going ahead at all. You need to assess every single part of the construction plan to see where the risks lie, right down to whether your workers might be travelling to site together. Of course, the HSWA and CDM Regulations 2015 also oblige you to keep safe anybody who may be affected by your undertaking, so that includes subbies, delivery drivers, labour only/agency staff, other contractors, and people who may be living or operating on site. Where certain phases can go ahead with minimal staff and distancing maintained as far as possible, continuance of works may be justifiable. At some stage you may need to explain why you allowed construction to go ahead, so that means having water-tight risk assessments, revisiting your Method Statements to adjust working arrangements, and documenting your search for plant, technology and equipment which may reduce the need for employees to come in to contact. There is no point saying that it isn't reasonably practicable to separate the two employees it takes to lift a heavy item when lifting equipment is readily available, and it is your duty to reduce the need for heavy lifting by law in any event (see the Manual Handling Regs).
Processes vary hugely, but you may have warehouses, production lines, and use of plant and heavy machinery and/or equipment. Some operations, such as in the food industry, have strict hygiene controls in place already and may be well set-up already to deal with the risks. Those that do not should consider whether any PPE would prevent the spread of risk, and alcohol gels, wipes and sprays should become standard. Remember, it is your job to reduce the risk as far as practicable, so it is not enough to simply go around handing out alcohol gels and sprays; put them in place, then issue work instructions explaining how, when and why they should be used. Again, consider staggering shifts and closing cafeteria; could canteen staff operate a lunchtime pick-up/delivery service instead? Could incoming materials and vehicles arriving be sprayed?
There isn't scope within this article to cover every industry, but the legislative obligations and requirements pervade all work systems. Special attention should be given to environments in which employees could come in to contact with vulnerable persons, whether staff members, the public, or other operators. If that is possible, arrangements need to be made to eliminate the risk entirely. If you cannot, you will need to make a decision about whether the risks can be justified objectively and ensure that you fully document the decision-making process.
It is vital that workers and trade unions/staff representative are consulted with and informed of the steps you are taking. A communication strategy should be put in place and workplace policies and procedures are updated to reflect the measures taken, including what action will be taken if they are not followed.
What about those employees who refuse to return to work? There will of course be certain employees, such as those who are shielding, who will not be able to return and the furlough scheme remains available to them until the end of June. The Government advice remains that if you can work from home you should continue to do so. For those who can return and cannot work from home, reassurance will be key to ensuring your staff feel confident and able to return.
If you are unable to reassure the employee who is refusing then you could look at alternatives such as a period of unpaid leave. If they continue to refuse however, then whilst you could contemplate taking disciplinary action, if employees have good reasons not to come into work or they are genuinely fearful, there is a significant risk of falling foul to s.44(1)(d) or s.100(1)(d) of the Employment Rights Act 1996. This protects employees from being subjected to a detriment or dismissed on the grounds that "in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work". We would recommend that advice is sought on a case by case basis if you have any employees in this position.
The primary driving force behind all of this is to protect workers and anybody that they may come in to contact with. The happy by-product of doing that effectively is to ensure that the business is protected from claims or adverse publicity. To help with that, you must fully document everything you do, explaining the reasons why you are doing it. All work systems and policies should be reviewed and updated, or temporarily altered if possible. Key to all this is involving staff members themselves, perhaps by asking whether they feel protected and, if not, how they think that systems could be improved. They should be asked to certify whether they consider themselves to be in the "vulnerable" category and why. There is no single greater protection for a business than involving staff in a full consultation of options, because the majority of workplace claims involve allegations that the employer breached its duty to the employee by failing to do something. If the employee him or herself could not think of a safer way to do things, is there really any basis for a claim in the first place?
For more information contact David Mayor, Partner in our Insurance department via email or phone on 01254 222 416. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
Or to speak to someone in our Employment team contact Amy Stokes, Senior Associate via email or phone on 0333 207 1157. Alternatively send any question through to Forbes Solicitors via our online Contact Form.