The guidance has not changed substantially following Boris Johnson’s briefing on Sunday the 11th May: employees should work from home when they can but if that is not possible then they can and should go to work unless they are in one of the sectors that has been shut down by law (hospitality and non-essential retail). Workers who cannot work from home are now being actively encouraged to return to work (construction and manufacturing sectors have been singled-out for encouragement). In theory, however, there has never been any requirement that such businesses should close in the first place, albeit that practical issues may have forced them to do so.
Importantly, there is now detailed guidance on returning to work and controlling Covid Risks in the workplace and guidance is sector-specific, covering:
All businesses should read the guidance which applies to them but guidance for other sectors may also be instructive if the sector-specific guidance doesn’t cover all the scenarios which may apply to a particular business.
Employees travelling to work have been advised to avoid travelling by public transport where possible and public transport will soon be working to Covid-19-secure principals. Employers should be aware that capacity is likely to be severely reduced, with the obvious consequences for journey times.
For businesses other than those in the hospitality and non-essential retail sectors, the question of whether they can safely re-open is a matter for each individual business. The HSE has warned that it may take enforcement action against businesses not taking ‘reasonably practicable’ steps to protect their employees by following the guidance on social distancing at work so, in theory, businesses should not be re-opening unless they have a workable plan to follow the guidance. This should be committed to paper before employees return to work. The HSE and Local Authorities are carrying out spot-checks on compliance and, anecdotally, the first prosecutions are in the pipeline. Given the concern that employees are likely to feel in relation going back to work, it would be reasonable to expect significant use of the reporting hotlines offered by the HSE.
If a business cannot follow the guidance but can implement other measures that are equally effective, they may do so, but such businesses would need to be able to defend any alternative approach by reference to the science – most businesses will lack the expertise to do this on their own, without specialist help.
The HSE’s approach constitutes a revolution in health and safety enforcement. It has never before regulated the risks from viruses in general circulation as if they were risks arising from work and indeed they may be subject to legal challenge if and when they begin enforcement action.
The Government has required workers to stay at home to work if they are able to do so. In their view, this step constitutes a ‘reasonably practicable’ control measure therefore represents the expectation of what is legally required under health and safety law. It has not published guidance on what circumstances will represent an inability to work from home but has referred to employees whose work is ‘critical for business and operational continuity’ and given some examples of employees who might have to return to work (even when other colleagues may not) , for example, facilities management staff, staff with regulatory duties that cannot be performed from home.
Many businesses will therefore be asking themselves what is ‘critical’ to business continuity. Some cases will be clear cut: for example employees in the service sector who work predominantly on computers and telephones: there is unlikely to be justification for asking them to take the risk of coming into work. For other businesses it will be less clear cut and those businesses should document the rationale behind a decision to return by recording tasks that cannot be achieved from home. Businesses should be wary of asking or allowing employees to come into the office if they have been successfully working from home until now – a change of approach will need justification. Also, the latest guidance raises the expectation that Businesses should provide employees with equipment to allow them to work from home, if possible. This is potentially a major development on previous guidance and the limits of what it required are unclear.
In general, control measures must include all steps that are not grossly disproportionate to the risk. In the case of COVID-19, the risk is a significant probability of death. In respect of the risk of death, this must be balanced against the cost and other impacts inherent in any particular control measure. The inference is that it will have to absolutely clear that a given task is critical to a business and cannot be completed from home and that adequate controls can be imposed in the workplace before a return to work can be justified. Tasks in ‘grey areas’, almost by definition, will not be enough to justify a return to work until the Government gives a formal indication that the risk level has reduced by changing the guidance.
Employers must reduce the risks of COVID-19 as far as far as is ‘reasonably practicable’. This will mean following the same approach as for other health and safety risks: doing a risk assessment and creating proportionate controls and safe systems of work, ensuring that employees understand these and monitoring the controls to ensure they are being followed. In practice, this means:
Government Guidance is good evidence of what is ‘reasonably practicable’. However, it may not be a good fit with your workplace and the specific challenges you face. The real question is therefore what to do when there is a ‘guidance gap’. Employers will still need to be able demonstrate that they have done what is reasonably practicable. The definition of ‘reasonably practicable’ will involve all controls that are not “grossly disproportionate” to the risk.
The Government has published a list of general principles in controlling Covid-19 risks, which include:
The full list can be found at here.
A list of ‘illustrative examples’ of what measures are appropriate in a variety of workplace types is also available (though these now need to be read subject to the latest Covid-19-secure workplace guidance (see above).
These sector-specific examples may be a useful beyond the sector they are specifically aimed at as a reference for employers in all sectors.
The Government has also advised that employers should seek assistance from trade associations and similar bodies when working out how to apply guidance.
The European Agency for Safety and Health has compiled a database of sector specific guidance from around the EU, which may be instructive where UK-specific guidance leaves a gap.
Where there are areas of uncertainty, it would be sensible to agree the control measures with staff; their representatives or trades unions. Each individual will have their own set of specific issues and risk factors, so engagement will be a necessary and inherent part of producing risk assessments.
Controls will only be effective and lawful if they are managed and resourced appropriately. There will be little benefit in introducing control measures if the staff, resources and equipment are not available to carry them out. If your controls are based around PPE, handwashing facilities, distancing etc. you must consider whether these are available, suitable and workable in practice. If not, it is better to design alternative controls than record measures that cannot be implemented.
Employers should be prepared to defend their approach and this means keeping records of risk assessments and evidence that they have been monitored, reviewed and enforced. If you do need to make difficult decisions on control measures or the decision to re-open your workplace, ensure to obtain objective evidence to justify your position and seek advice from legal advisers to ensure that your rationale is consistent with the legal framework and requirements.
As well as the possibility of HSE enforcement action, employees themselves have rights in respect of their health and safety at work. The most direct right comes in the form of the right not to be subjected to a detriment or dismissed on the ground that an employee, when reasonably believing there to be a serious and imminent danger:
The concept of detriment is broad enough to incorporate most forms of disadvantage suffered by the employee in these circumstances, including any financial or economic disadvantage (such as being paid less, or not at all), or being subjected to disciplinary proceedings.
In order to be protected, the employee's belief must be both genuine and reasonable. Whether it is a reasonable belief may depend on the circumstances, such as the extent to which the employer has assessed risks and followed guidance; whether any further safeguards such as PPE can be provided or other mitigation measures can be taken; and the vulnerability of the employee or those with whom they live. An employer may be following Government Guidance to the letter but the employee may still have a reasonable belief that working is not safe for them or another person.
Employers should listen to such concerns raised by employees and consult with them and where appropriate, seek specific advice.
Whistleblowing legislation will also be relevant to employees raising concerns about health and safety at work. Employers will need to carefully consider whether concerns raised by employees fall within the definition of a qualifying disclosure for the purposes of the whistleblowing legislation and assuming they do, ensure that those employees are not subjected to a detriment or dismissed as a result of raising those concerns.
Broadly speaking, a disclosure to employers will be protected if:
When an employee raises concerns with their employer which may amount to whistleblowing, the employer must respond appropriately. Employers may currently feel overwhelmed by what is required by them to respond to COVID-19, and feel that they don’t have time to respond. Whilst it is important to ensure that policies are followed and appropriate investigations are undertaken, as a minimum first step, employers should ensure that the employee is aware that their concerns have been noted, will be addressed, and if appropriate, told what is being done to remedy those concerns (for example protective equipment is being ordered, or shifts staggered). Employers will need to ensure that the employee is not punished for raising a concern (be particularly careful around any subsequent selection process for furlough or redundancy). Communication will be key.
We are all aware that, despite the government’s position that those who can’t work from home should be actively encouraged to return to the workplace, there will be many for whom this simply isn’t possible, for example because:
Childcare
There is a longstanding right to time off work to look after a dependent. Within the context of Covid-19, this statutory right may be relevant to deal with the situation where the employee’s child’s school or nursery is closed and there are no alternative childcare arrangements. This is a right to unpaid leave only and is only available for a “reasonable” amount of time off to deal with the immediate emergency. Usually, what is “reasonable” would be such time as is necessary to make alternative childcare arrangements. However, currently, where households are not allowed to mix and childcare providers remain shut, this is not going to be a possibility.
In this scenario, employers should consider whether there is any way to enable the employee to continue working at all – can they carry out any work from home; can shift times be changed to accommodate childcare? If work will be impossible, under the current government guidance, employers are permitted to furlough workers who cannot work due to childcare responsibilities. Alternatively, consideration should be given to allowing employees to use annual leave or take unpaid leave.
An alternative for employees with one year’s service is parental leave. Eligible employees will be entitled to take (with notice) up to 18 weeks’ unpaid leave per child. Whilst the statutory scheme sets out that this should be up to four weeks per year, this limit can be disapplied by agreement.
Employers should be cautious about taking any steps to discipline or dismiss employees who cannot attend work due to childcare issues, or to let this influence any redundancy selection process, due to risks of indirect discrimination.
Shielding
Similarly, employees who are shielding on government guidance are highly unlikely to be able to safely return to the workplace, and indeed HSE guidance has stated that extremely vulnerable people must not work outside the home. Assuming they are not able to work from home, they will be entitled to be paid SSP. However, again, under current government guidance, employers are permitted to furlough shielding workers. For completeness, it should be mentioned that this technically appears to be contrary to the Treasury Direction setting out the scheme, when read alongside the amendment to the SSP regulations, but the practical approach being taken by HMRC appears to be to allow this and, indeed, ACAS are encouraging shielding employees to makes requests to their employers that they be furloughed.
Despite the provisions that have been put in place, both under the furlough scheme and SSP, to support shielding workers, there is also an argument that, if they are not paid full pay, this could, of itself, amount to a detriment under the health and safety provisions, or unlawful discrimination arising from the worker’s disability. This is a complex and uncertain area, which is likely to rest on the specific facts in each case, and employers are urged to take legal advice if this affects them.
A final point
Having put in place all the steps mentioned above and considered the concerns which could be raised, employers who have furloughed their workforce will need to start the process of unfurloughing staff and bringing them back into work. This process needs careful consideration and will be considered in a future update.
Overall, it is important to note that, whilst this provides an overview of the issues employers need to be aware of when reopening the workplace, each workplace and workforce will be different and specific advice should be sought to avoid potential issues and claims.
For more information on the article above please contact Su Apps
