Returning to work in the time of COVID-1914/05/20
The Government has published guidance to assist those who are returning to work following the announcement this week of the COVID-19 recovery strategy. The guidance is split into eight categories covering separate workplace settings, and it is expected that these will be added to as other sectors gradually reopen.
The documents contain non-statutory guidance to assist both employers and employees in managing the return to work. It is important to note that the principles they set out do not replace or supersede existing obligations such as the statutory duties imposed by Health and Safety legislation and by regulations, equality legislation or an employer’s common law duty of care to its employees.
The guidance is underpinned by the following key principles:
- Employees should continue to work from home wherever possible.
- Employers should undertake a COVID-19 risk assessment in consultation with workers and trade unions.
- Maintain 2 metres social distancing wherever possible.
- If not possible, manage transmission risk.
- Reinforce cleaning processes.
Practical steps for all workplaces
Where employees cannot work from home, in order to achieve a so-called “Covid secure” workplace, employers should work through the steps below to reduce the risk of transmission:
- In every workplace, increase the frequency of handwashing and surface cleaning.
- Make every reasonable effort to keep people 2 metres apart wherever possible.
- Where the social distancing guidelines cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and if so, take all the mitigating actions possible to reduce the risk of transmission between their staff.
- Keeping the activity time involved as short as possible.
- Using screens or barriers to separate people from each other.
- Using back-to-back or side-to-side working (rather than face-to-face) whenever possible.
- Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).
- Finally, if people must work face-to-face for a sustained period with more than a small group of fixed partners, then you will need to assess whether the activity can safely go ahead.
The guidance states that when managing the risk of COVID-19, additional PPE beyond what a worker would usually wear is not beneficial with the exception of clinical settings, such as a hospital. It is not necessary, therefore, for employers in other sectors to provide PPE to staff routinely, although there may be certain circumstances when it is appropriate. Wearing a face covering is optional and employers should remind employees that should they chose to wear one, they will have to adhere to the usual rules regarding hand washing and social distancing.
If staff who are clinically vulnerable (that is 70 or over, under 70 but with an underlying health condition, or pregnant) cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay 2m away from others. As for any workplace risk, employers must take into account specific duties to those with protected characteristics.
Staff members who are extremely clinically vulnerable (that is those who have received a letter from Public Health England confirming that they are high risk and are shielding) have been advised not to work outside the home. Employers will need to consider what work they can offer to these individuals. This may involve a change in their usual duties or some wider reorganisation. It will be important to engage with these employees and with all affected staff in order to carry out any changes.
The guidance makes clear that employers need to comply with the Equality Act in their approach to staffing during the COVID-19 pandemic. For example, employers should be aware of the risks of both direct and indirect discrimination claims where they take decisions whereby those with a protected characteristic suffer less favourable treatment. Current evidence suggests that those from a BAME background are more likely to be badly affected by COVID-19, and this could lead to indirect discrimination claims from BAME staff going forward. Employers will also need to continue to comply with the duty to make reasonable adjustments for disabled employees.
Risk assessments and consultation
Employers have an existing statutory duty to carry out health and safety risk assessments and to reduce workplace risks to the lowest reasonably practicable level and these duties will continue to apply to the return to work. There is a statutory duty to consult about health and safety with either the representative from a recognised trade union or, in workplaces where there is no recognised trade union, someone who has been nominated by the workers.
The guidance requires employers to carry out a Covid-19 specific risk assessment in consultation with workers and trade unions. Risk assessments by employers with over 50 workers are expected to be published on the employer’s website.
What to take away
The guidance makes clear that no one is obliged to work in an unsafe work environment. Furthermore, whilst it sets out a number of practical steps, it does not have legal effect, nor does it change the existing legal position, which is that employers must provide a safe place of work for employees. Legislation provides statutory protection for employees who reasonably believe there to be serious and imminent danger and who refuse to undertake duties or attend the workplace as a result. What is reasonable will depend on the facts in each case. As with many workforce issues which have resulted from the pandemic, the recommended approach is engagement and consultation with a view to seeking agreement. As the guidance states “the people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely. Involving them in making decisions shows that you take their health and safety seriously”.