As a relaxation of the lockdown comes slowly into view, we consider what measures employers can take to get back to business as usual, whilst protecting staff and managing the health and safety risks involved with coming out of lockdown.
Health and safety standards had steadily increased to the point where very few of us thought there was much risk to our physical safety in going to work in an office environment. But in a few short weeks this has changed completely due to the ease of transmission of the coronavirus in crowded spaces.
The government’s success in persuading just about everyone to stay at home “to keep safe” will present employers with the very considerable challenge of opening up their workplaces in an acceptably safe manner and in persuading everyone that it’s safe to come back.
This article covers:
- What measures should employers take?
- What are an employer’s health and safety legal duties in the context of the Covid-19 pandemic?
- Health and safety duties – common law
- Health and safety legislation
- Employee involvement
- Employers Liability Insurance
- What does this mean in practice for employers as lockdown eases?
1. What measures should employers take?
Some of the measures already under consideration by employers are:
- requiring face masks to be worn
- distancing arrangements
- asking about Covid-19 symptoms, risk factors and underlying health conditions
- requiring more vulnerable groups to work at home
- using an NHS App, if that appears
The government has produced some guidance on social distancing measures within the workplace, although at the time of writing it only deals with the sectors of the economy which are not subject to lockdown (such as shops, logistics and manufacturing). However, employers in other sectors should keep an eye out for updates to this advice and, in the meantime, consider whether any of the suggested measures can be applied to them.
Despite the absence of guidance for office environments, we recommend employers start planning now how they will manage the safe return of their staff to the office.
Steps to consider include:
- obtaining protective equipment such as face masks (subject to up-to-date guidance on their effectiveness and constraints on their availability for workers outside of health and social care)
- working out how to implement distancing measures within the office such as rearranging workstations and rotating groups of employees between home and work
- establishing a protocol for dealing with employees suffering from the symptoms of Covid-19 or whose household contains someone displaying such symptoms
- deciding whether to ask more vulnerable staff to remain away from the office for longer and considering who should be included in this category
- considering whether to ask employees to use any App produced by the NHS which enables contact with a Covid-19 sufferer to be traced and establishing a protocol for dealing with an employee who receives such notification
- considering whether to require all employees to undergo testing for Covid-19/antibodies if such tests become available to employers, and what action to take on receipt of the test results
- drawing up a new Covid-19 influenced health and safety policy.
- appointing staff to oversee the implementation of health and safety measures, which perhaps may encompass a wider range of staff than those already appointed as “competent persons” under the Management of Health and Safety at Work Regulations 1999
- setting up a consultative body of staff representatives to share management thinking and to obtain feedback from staff.
2. What are an employer’s health and safety legal duties in the context of the Covid-19 pandemic?
These are set out in legislation and in common law (case law), and whilst the overarching principle is that employers must take reasonable care for the safety of their employees, this does not mean that employers will be liable for everything that goes wrong.
3. Health and safety duties – common law
Employers owe duties under the common law (as part of the law of negligence and as an implied term in the employment contract) to protect the health and wellbeing of their employees. Breach of these duties can result in claims against employers for compensation for injury or illness.
The relevant principles have been developed and refined by the courts in a series of cases and are now also found in legislation.
Common law duties to employees include the provision of:
- a safe place of work;
- a safe system of work;
- safe equipment; and
- safe staff.
These duties are not absolute in nature, but instead are sub-sets of the broader duty on employers to take reasonable care for the safety of their employees. What is “reasonable” is a question of fact and will vary depending on the circumstances.
In the current context, “what is reasonable” is the big unanswered question, and to help answer it we can take away from the case law that:
- the common practice of other employers in the same industry may determine what is reasonable
- but a failure to follow common practice is not necessarily negligent, if (for example) there is conflicting evidence as to whether common practices are effective
- employers must allow for the fact that employees may be heedless of the risks, particularly where such risks are encountered on a regular basis (as they are in the current Covid-19 crisis). This will involve taking reasonable steps, not only to instruct employees on safety procedures, but also to ensure that the procedures are followed
- Employers are under a duty to warn of dangers, even where these are obvious; for example, in the Covid-19 context this would include advice on hand washing and distancing from other members of staff.
4. Health and safety legislation
The common law has been augmented by health and safety legislation.
The principal piece of legislation which sets out the framework within which employers must operate is the Health and Safety at Work Act 1974. This Act requires employers to ensure, so far as reasonably practicable, the health, safety, and welfare of their employees, and to enact a written health and safety policy as to how this is to be achieved.
The Act mirrors the common law duties in many ways but provides for criminal penalties to be imposed on both employers and individual directors or managers who are culpable.
Other legislation includes:
- the Management of Health and Safety at Work Regulations 1999: this includes a requirement to carry out risk assessments
- the Workplace (Health, Safety and Welfare) Regulations 1992: the regulations include requirements to provide adequate lighting, heating, ventilation etc
- the Provision and Use of Work Equipment Regulations 1998: this includes a requirement to ensure the safety and suitability of work equipment and to provide information, instruction, and training on the use of equipment
- the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (“RIDDOR”): these regulations include a requirement to report to HSE the death of any person and specified injuries such as eye injuries, injuries from electric shock, and acute illness requiring removal to hospital or immediate medical attention, which (according to the Health and Safety Executive) includes Covid-19.
The statutory duties also extend to the requirement to provide protective equipment, possibly including face masks. If employees do not obey instructions to take precautions such as hand washing or the use of safety equipment, the employer will not be liable for damage suffered by those employees as a result.
5. Employee involvement
Although the health and safety duties described above primarily fall on employers and the managers of the business, a wider staff involvement is recommended, particularly during the Covid-19 pandemic and in the context of the return to work.
Open and clear communication with staff is important in order to ensure the necessary buy-in to make the return to the office a success. As part of this, employers must give due care and attention to any concerns or queries which staff may have about their own arrangements, including transport to and from the office and the risks that poses, as well as any vulnerabilities they have.
There are statutory duties to consult with employees in respect of certain measures taken in the workplace. Irrespective of these, we recommend employers establish a body of employee representatives to be consulted in respect of the proposed arrangements for the return to work. This not only helps to address particular concerns and support staff morale, but also demonstrates that the measures taken to protect employees’ health and safety are reasonable and therefore in compliance with the law.
It is also important to note that individual employees have their own duties under the Health and Safety at Work Act 1974, namely to take reasonable care for the health and safety of themselves and others at work and to co-operate with their employers to ensure all health and safety obligations are complied with.
In the context of Covid-19, this will likely place an obligation on employees to report to their employers if they are experiencing symptoms or have been in close contact with those who have been diagnosed.
6. Employers Liability Insurance
Employers must have insurance to cover their liability for injuries or diseases suffered by their employees, for a minimum level of cover of £5 million. We think this insurance will include liability for Covid-19 and its consequences.
However, having insurance in place does not absolve employers of responsibility for any lack of employee protection. The policy may require the employer to repay the insurer for sums it has had to cover in relation to an injured employee, if there have been serious failures on the part of the employer to provide reasonable protection for its employees.
A point to note is that if an employee contracts Covid-19 as a result of a breach of the employer’s duty, this may foreseeably result in the exposure of (for example) family members to the disease, who may not be covered under the employer’s liability insurance policy.
7. What does this mean in practice for employers as lockdown eases?
Employers will need to start work now on determining what steps are “reasonably practicable” for them to take to ensure a safe return to the office. We suggest:
- setting up a working group of appropriately skilled managers
- producing a draft amended health and safety policy and risk assessment
- monitoring (and recording with dates) all official guidance to employers on health and safety measures. Adherence to the letter of any guidance from the government, Public Health England and the Health and Safety Executive will go a long way towards showing that an employer has met the necessary standard of care. Given that our understanding of the virus is constantly evolving, new guidance should be scrutinised to consider whether it warrants a change in approach
- establishing a staff consultative group.
In drawing up the new policy, several other non-health and safety legal issues need to be considered in the context of the possible measures:
- testing: Employees’ consent to undergo testing is required: this should be recorded in writing in a document which explains how the results are to be shared, stored, and used, to be compliant with medical and data protection laws. It is arguable that, from an employment law perspective, it is within employers’ power to issue reasonable instructions to require that employees should be tested. However, disciplinary action in light of a refusal to take a test should be approached with caution.
- consequences of test results: Another point to focus on now is exactly how the employer intends to deal with both positive and negative test results: whilst an employee who is found to have the virus should be required to self-isolate at home, it is less clear how to deal with other employees, both those who have antibodies and those who do not.
- NHS tracking app: The NHS is reported to be developing a tracking app which will apparently alert a user to the fact they have been in close contact with someone with Covid-19 symptoms. If this becomes available, employers may wish to require their employees to download the App, and to notify them of any alerts they receive. A protocol needs to be developed as to what instructions will be issued to employees on receipt of such a notification<span>; does this result in an immediate instruction to go home? Employees should be instructed that their own duties will require them to notify their employers of any notification they have received about recent contact with a symptomatic person.</span>;
- sending employees home: Employers may wish to do this if a test identifies an employee as having insufficient antibodies to resist an infection, but we would sound a note of caution to this response, as the effect will be to send well employees home who are needed in the office. A more logical response in our opinion is to send home only those who are exhibiting symptoms or those who have been in contact with people with symptoms. Employees may not want to be sent home! We think that the employer can require this as a reasonable and lawful instruction and because the employee is also under a duty to safeguard their fellow employees’ health.
- personal protective equipment: Employers should follow official guidance on the use of face masks, hand washing etc. Guidance on face masks is not yet settled but is expected in the coming days. Depending on the current understanding of the benefits of face masks to those not on the frontline in health and social care, employers may wish to advise that employees use face masks on the way to and from work.
- office layout: Employers should consider whether the layout of the office should be modified to accommodate greater distancing. It may require rotation of employees so that each group works from home periodically.
- identifying vulnerable employees: Duties of care are owed to each employee individually, so that all the circumstances relevant to each employee must be taken into account, including those who are vulnerable and with known risk factors. An employer’s lack of knowledge of the risk to employees may itself be evidence of a negligent failure to assess risk. Employers should ask employees to disclose relevant risk factors so that the appropriate measures can be considered in their case.
- measures to protect vulnerable employees: Some of those at greatest risk will be older employees and those with a pre-existing disability. There is also growing evidence that some members of the BAME community are more at risk, though an explanation for this has not yet been found. Care needs to be taken in arriving at blanket assumptions that members of these groups are all high risk with the consequence that they are excluded from the workplace or other workplace opportunities. This could give rise to claims for indirect and direct discrimination under the Equality Act.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.