3 Jun 2021

The Government’s working from home guidance may be lifted on 21 June, although recent concerns around an uptick in cases and the rise in prevalence of the so-called Delta variant may postpone the re-opening. In this article we set out our revised ten-step guide for employers to help ensure that, upon the change in guidance, they can reopen offices whilst ensuring they comply with their duties to staff.

These are the ten steps we are recommending:

1.     Step one – Understand your health and safety responsibilities

2.     Step two – Carry out a risk assessment

3.     Step three – Update your health and safety policy

4.     Step four – Follow the latest Government and scientific guidance

5.     Step five – Draft a Covid-19 testing, tracing, and disease management protocol

6.     Step six – Keep up to date

7.     Step seven – Document everything!

8.     Step eight – Consult staff and health and safety representatives

9.     Step nine – Train managers and staff

10.   Step ten – Focus on solutions to the difficult issues with other legal ramifications

1. Step one – Understand your health and safety responsibilities

Employers with office-based employees will have operated with a largely remote workforce for nearly 15 months.   They now face a challenge to re-open up offices whilst minimising the risk of infections.

As far as health and safety is concerned, the primary duties on employers are set out in a mixture of case law and legislation.  Case law requires employers to provide a safe place of work, a safe system of work, safe equipment, and safe staff. 

Employers have a statutory obligation to ensure, so far as reasonably practicable, the health, safety, and welfare of employees, and to enact a written health and safety policy as to how this is to be achieved.  This is set out in the Health and Safety at Work Etc. Act 1974.  Other key legislation is contained in:

  • Management of Health and Safety at Work Regulations 1999: include a requirement to carry out risk assessments
  • Workplace (Health, Safety and Welfare) Regulations 1992: include requirements to provide adequate lighting, heating, ventilation etc.
  • Provision and Use of Work Equipment Regulations 1998: include a requirement to ensure the safety and suitability of work equipment and to provide information, instruction, and training on the use of equipment.
  • Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (“RIDDOR”): includes a requirement to report to HSE the death of any person and specified injuries including Covid-19.

You are not expected to guarantee every employee’s safety nor expend disproportionate costs to eliminate risks which are already tolerably low. However, what is reasonably practicable will depend on your circumstances – including the profile of your workforce, the layout of your office and building and the nature of the work – so it is a good idea to find out what is going on elsewhere in comparable offices. Much will depend on common sense as to what is practical and workable. Office-based employers are not in the first wave of employers to re-open their workplaces, so they have the opportunity to learn from the experience of those who have already re-opened.

A key point to understand about the responsibilities of an employer in relation to the health and safety of staff is that it is not an absolute responsibility. Employers should of course take steps to safeguard their employees’ health and safety but steps which are potentially beneficial yet disproportionate in terms of cost or workability can, after due consideration, be ruled out in most cases.

2. Step two – Carry out a risk assessment

An accurate assessment of the risks facing employees in attending the workplace is the heart of the employer’s legal responsibilities. If they are yet to do so, employers should update their pre-existing risk assessments to take account of the new risks posed by Covid-19 to their employees and to determine the reasonable measures that need to be taken to manage these risks. There is a requirement to carry out a risk assessment irrespective of the size of the organisation.

The Health & Safety Executive suggests a five-step process to managing risks:

  1. Identify hazards
  2. Assess the risks
  3. Control the risks
  4. Record your findings
  5. Review the controls

Further details on each step are available here along with a risk assessment template and examples.

3. Step three – Update your health and safety policy

This needs to be updated to set out the risks identified in the risk assessment and the measures that will be implemented to address them. Measures can be anything which is aimed at lowering the risk of the identified hazards: for example, if lifts are considered to present a particular risk of transmission, a policy could specify a rule encouraging stairs to be taken where possible and limiting numbers of people in the lift at any one time. Staggering arrival times could also help lower the risk. 

4. Step four – Follow the latest Government and scientific guidance

Everyone’s understanding of the Covid-19 virus has evolved significantly since its arrival on UK shores.  In the early months the emphasis of the scientific guidance was on hand and surface hygiene, on the understanding that the virus particles were heavy and were primarily transmitted after touching contaminated surfaces. 

More recent evidence has firmly pointed towards transmission via aerosols in the air, although this has not prevented premises from deploying the low-cost and unintrusive measure of hand sanitiser.  Ventilation is now recognised as an important factor to consider when assessing risks, as transmission is greater in poorly ventilated spaces.  Fans, ducts, doors, windows and vents should all be used to provide improved ventilation.

Given that a change in our understandings of the nature of the virus will change the way we tackle it, our advice is to follow government guidance closely.  This will assist with ascertaining what steps are beneficial, reasonable and proportionate (and what measures, which might be cost-effective, are of marginal benefit at best).  Specific guidance is available for managing the return of those who work in or run offices or contact centres (see here). We consider it would be hard to criticise an employer who follows this guidance closely.

5. Step five – Draft a Covid-19 testing, tracing, and disease management protocol

We recommend that employers draft a protocol for managing an outbreak of the disease in the office and their approach to testing and contact tracing. The protocol should deal with issues such as what to do in the event someone develops symptoms whilst in the office and what this means for those employees who work alongside the relevant individual. Clearly the best approach will be to send these individuals home as soon as possible and encourage them to get a test and self-isolate if they may be infected.

Employers should become fully familiar with the Government’s test and tracing system and take full account of it in drafting their protocol as well as encouraging staff to check in using the App. They need to be ready to send employees home immediately if they are notified that they have been in contact with someone with Covid-19 or the symptoms of this illness. 

It was recently suggested that NHS test and trace will remain in full force following the end of the roadmap period (provisionally due on 21 June) and that the vaccinated would be required to self-isolate to the same degree as others told to self-isolate by the App.  Should this be confirmed, employers should ensure staff are fully aware of this. 

6. Step six – Keep up to date

Ensure that an appropriately skilled member of staff is charged with monitoring government, Public Health England and WHO guidance and ensuring that risk assessments, health and safety policies and Covid-19 protocols are regularly updated and that all of the measures being adopted to manage Covid-19 risks are compliant with the official guidance in force at the time.

7. Step seven – Document everything!

Employers are strongly advised to invest the time and effort in producing and updating (as necessary) risk assessments, health and safety policies and testing, tracing and disease management protocols and to set out in writing their reasons for adopting – or not adopting – a specific policy or measure by reference to the government guidance in force (or other reliable guidance) at the time.

Employers should keep every version of their key documents and a record of the dates on which they were in force. It will also be helpful to keep a hard copy or PDF record of the government guidance relied upon and the dates on which it was in force. If there are good reasons for departing from the guidance record these and the basis for your interpretation of aspects of the guidance. This will enable you to demonstrate after the event, if needed, that all reasonable steps were taken based on best advice available at the time.

8. Step eight – Consult staff and health and safety representatives

Consult and discuss working arrangements with employees. Employers should not underestimate the importance of keeping an open dialogue with their employees about the steps they are taking to protect the workforce against the virus. The Health & Safety Executive has produced this guide to help employers with these discussions.

Many employers are preparing questionnaires to send to staff asking about their individual circumstances as a starting point for consulting with them about their return to the office.

9. Step nine – Train managers and staff

Make sure all workers understand Covid-19 health and safety protocols and procedures by providing clear and consistent guidance and training materials.

10. Step ten – Focus on solutions to the difficult issues with other legal ramifications

Measures which may be implemented include:

  • ensuring those who are advised to self-isolate stay at home, whether they have Covid-19 symptoms or because other members of their household have symptoms.
  • protecting workers who are clinically vulnerable (considering alternative roles where possible). Those who are shielding or are in the clinically vulnerable category should be provided with separate explanations as to what will be done to protect them, including working from home if necessary or carrying out tasks where social distancing can be followed.
  • treating everyone fairly in the workplace and be mindful of the different needs of different groups of workers or individuals: some may have vulnerabilities or be reluctant to return to the office for other reasons, such as the health of others in their household: see our guide to the main employee relations case studies here for further information
  • encouraging employees to make use of free lateral flow tests to ensure they test negative: see our discussion of how testing can play a role in your return to the office here for further information
  • considering whether exceptions should be made for the unvaccinated (but note the difficulties with this approach we discuss here)
  • increasing the frequency of surface cleaning and clean the office before re-opening
  • encouraging employees, where possible, to drive or walk into the office and/or promoting incentives such as the cycle to work scheme
  • ensuring, as far as reasonably possible, that employees can maintain social distancing with others who are not in the same household
  • staggering working hours
  • placing screens in between workstations where these are close together
  • setting out one-way systems where possible
  • minimising in-person meetings if possible and ensure they can take place in adequately ventilated rooms with appropriate distancing.

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