IS YOUR BUSINESS “COVID SECURE”?

Howes Percival LLP

18th May 2020

On 10 May, Prime Minister Boris Johnson addressed the UK to set out his, and the Government’s vision, on how the country can be eased out of the Coronavirus lockdown. The Government’s new message, which due to differences of approach between the UK’s devolved administrations, will only apply to England for now, involves a change in emphasis from its longstanding “stay at home” message to one of “stay alert”. In addition to the new messaging, the Prime Minister also outlined a proposed roadmap out of lockdown which envisages a cautious and phased return to normality.

On the face of it, the Prime Minister’s speech signalled a loosening of restrictions in relation to certain sectors including, among others, construction and manufacturing. The Government is now requesting employers to encourage their staff to return to work where they are unable to work at home. Hence, the dropping of the “stay at home” tagline. In addition, a number of further relaxations were made from Wednesday around the limits on exercise, outdoor activity and contact with others outside of your own household with all still requiring adherence to the social distancing two metre rule.

Following the speech, the Government published a series of guidance documents including its 60 page Covid recovery strategy (explaining the staged plan and proposed timescales for easing the lockdown) and some sector specific documents containing practical advice for returning to work safely during the Covid-19 outbreak. The so called “Covid Secure” workplace guidance (the guidance) covers eight types of work environment including: factories, construction sites, offices, takeaways, labs, shops, vehicles and work in other people’s homes. The guidance can be viewed here.

THE GUIDANCE

The guidance provides practical advice on how to work safely in different workplace settings and the considerations employers need to think about to reduce the risk of transmission of Covid-19 in the workplace. As with most safety related guidance, it is non-statutory but in essence should be viewed as best practice. Following the guidance is likely to demonstrate compliance with your health and safety duties in respect of Covid-19. Though the guidance covers a number of different workplace types, it has, a number of key themes.

MANAGEMENT OF RISK

All employers have a duty to reduce workplace risk as far as is reasonably practicable through appropriate risk control measures. The management of risk from Covid-19 is no different. The first step in the management of risk is to undertake a Covid-19 risk assessment and take any necessary preventative measures identified within the risk assessment. The significant findings of the risk assessment should be shared with employees and the guidance suggests that employers of 50 or more workers should publish the results on its website.

The guidance lists a number of steps which should be worked through in order as part of the assessment process and covers increased handwashing and surface cleaning, continued working from home (where possible), social distancing measures or (where not possible and the activity needs to continue) additional mitigation measures such as modifying the task, use of screens, time limiting the task and fixing teams. One thing that guidance makes explicit is that “no one is obliged to work in an unsafe environment.” The recommendations in the rest of the guidance are ones that the employer should consider as they work through the risk assessment process.

WHO SHOULD GO TO WORK

Unless in a sector where the government is encouraging people to return to work (and even then only where they cannot work at home), the guidance requires people to work from home if possible. There is also information on the monitoring and protection of vulnerable staff. The existing rules on self-isolation remain and therefore anyone who has Covid-19 symptoms or living in a household with a symptomatic person must not return to work.

SOCIAL DISTANCING MEASURES

A key control measure to avoid the transmission of Covid-19 is maintaining social distancing in the workplace with workers keeping two metres apart wherever possible. The guidance provides practical advice on how this can be achieved and the types of things that should be considered across the different working environments including both physical and operational changes where the social distancing requirements cannot be met. The guidance also makes recommendations as to how best to manage customers, visitors and contractors.

CLEANING THE WORKPLACE

Increased frequency of cleaning and introduction of improved hygiene measures are also promoted by the guidance with employers being encouraged to consider facilities for handwashing/sanitising on entry and exit to the workplace; greater cleaning of surfaces that are touched regularly; and guidance to staff on effective handwashing procedures. There are also recommendations to assist with the receipt of deliveries into the workplace.

PERSONAL PROTECTIVE EQUIPMENT (PPE)

Where already in use in a workplace as part of an employer’s risk management measures (for non Covid-19 risks), workers should continue to wear PPE as required. However, the guidance does not advocate for additional PPE beyond what is normally worn as a protective measure against Covid-19. PPE as a general rule is a control measure of last resort and the guidance is clear that the risks from Covid-19 are best managed using the control measures referred to above. There are of course workplaces where PPE is essential such as a healthcare setting and there may be tasks which are identified by a risk assessment as requiring PPE. If that is the case, it is the employer’s responsibility to provide it and ensure it fits properly.

WHAT ARE THE CONSEQUENCES OF NOT FOLLOWING THE GUIDANCE?

The assessment of risk and the control measures to manage it must be in place before letting workers return to the workplace. Compliance with the guidance will no doubt be challenging for a number of employers, but failure to do so could present a significant financial and reputational risk. Despite the unprecedented nature of the Covid-19 outbreak, the Government has already signified that it will not hesitate to take action against any employer who chooses not to comply with the guidance or otherwise fails to take appropriate action to control workplace risk.

To reinforce this message, the Government has recently:

  • Indicated that the Health and Safety Executive (HSE) will be undertaking monitoring of Covid-19 compliance including random spot checks. We assume this will also extend to Local Authorities where they are the relevant regulator;
  • Provided a £14 million war chest for the HSE enabling it to take on additional staff, equipment and inspectors to provide focus and emphasis on Covid-19 compliance; and
  • Repeated its call for people to only go to work where it is safe to do so.

Employers will be faced with a raft of unfamiliar and complex challenges to navigate. The threat of enforcement action for non-compliance is a very real one and no doubt HSE inspectors, who have largely been sidelined for the past few weeks, will be looking to enforce the rules with vigour. In addition, the heightened societal concern around the threat of Covid-19 could lead to increased resistance from workers and, in some cases, whistleblowing to the authorities, if they feel that they are being forced to work in difficult or inadequately protected conditions.

If you have been contacted by the HSE or other safety authority in relation to your Covid-19 measures our Regulatory Team are ready and able to help you.

If you require any further information or advice, please do not hesitate to contact Alan Millband at alan.millband@howespercival.com or on 07920 799703 or Robert Starr at robert.starr@howespercival.comor on 07971 361765.

The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.

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