COVID-19 - RETURNING TO WORK AND SAFETY 

This note looks at the general principles of safety at work, the government’s recent detailed guidance on returning to work and, finally, the employment law protections that exist (and therefore claims employers might face) in relation to safety and returning to work.

Where are we now?

With effect from this week, the position in England is that employees in many sectors should return to work if they cannot work at home. This is the beginning of a wider set of efforts to get more and more employees back to work.

However, any return to work must also be safe.

Core safety principles

UK workplaces are regulated from a safety perspective with a well evolved system of enforcement for breaches of required standards. The onus and responsibility is on employers to take action. The core duty owed by employers to their employees is set out in the Health and Safety at Work Act 1974 and is also derived from the common law (i.e. case law in relation to negligence). Fundamentally, all employers are under a legal duty to consider and document the risks attaching to their activities and to provide:

  • a safe place of work;
  • a safe system of work/environment;
  • a safe and adequate equipment for the job including PPE (at no charge);
  • information, instruction training and supervision as required; and
  • appropriate reporting mechanisms.

The Personal Protective Equipment at Work Regulations 1992 impose a mandatory duty on employers to provide suitable PPE to employees who may be exposed to a risk to their health and require that the PPE must be “effective to prevent or adequately control the risk or risks involved” and provided at no charge. These obligations, dealt with above in summary only, are then augmented by a range of specialist requirements applicable in different workplace contexts which are not possible to set out in this note.

New government guidance

On 11 May 2020 the government provided a series of guidance notes to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic. A link to the government guidance can be found here.  Employers are encouraged to read the guidance note that applies to their sector. The guidance notes are long and so set out below is a summary of the key advice:

General points

    • Employers with more than 5 employees will need to update their health and safety risk assessments to take account of Covid-19. The guidance says: “A risk assessment is not about creating huge amounts of paperwork, but rather about identifying sensible measures to control the risks in your workplace”.
    • Employers have a duty to consult employees on health and safety. They should listen and talk to employees about the work and how to manage risks from COVID-19.
    • Each business should take actions based on its nature, size and type, how it is organised, operated, managed and regulated.
    • The objective is to reduce risk to the lowest reasonably practicable level by taking preventative measures, in order of priority.
    • Businesses and workplaces should make every reasonable effort to enable working from home as a first option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines (keeping people 2m apart wherever possible).
    • Wearing a face covering is optional and is not required by law, but employers should support their workers in using face coverings safely if they choose to wear one.

Offices, contact centres and similar indoor environments

    • increasing hand washing and cleaning of workstations/shared equipment;
    • avoiding sharing stationery;
    • keeping activity time when one cannot social distance as short as possible;
    • using back-to-back or side-to-side working (rather than face-to-face) where possible;
    • using floor tape or paint to mark areas to help workers keep to a 2m distance;
    • avoiding hot desking;
    • (only where it is not possible to move workstations further apart) using screens to separate people from each other;
    • 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);
    • staggering arrival and departure times at work to reduce crowding into and out of the workplace;
    • providing additional parking or facilities such as bike racks to help people walk, run, or cycle to work;
    • limiting passengers in corporate vehicles (e.g. work minibuses);
    • reducing congestion (e.g. by having more entry points to the workplace);
    • providing more storage for workers for clothes and bags;
    • providing alternatives to touch-based security devices such as keypads;
    • introducing more one-way flow through buildings;
    • reducing maximum occupancy in lifts;
    • discouraging non-essential trips within buildings and sites and encouraging phone calls and emails;
    • staggering break times to reduce pressure on break rooms or places to eat;
    • using safe outside areas for breaks; and
    • opening windows and doors frequently to encourage ventilation, where possible.

Indoor labs and research facilities

    • frequent cleaning of work areas and equipment between uses;
    • determining the required cleaning process for expensive equipment that cannot be washed down, designing protection around machines and equipment;
    • frequent cleaning of objects and surfaces touched regularly, such as door handles and testing surfaces and making sure there are adequate safe disposal arrangements; and
    • clearing workspaces and removing waste and belongings from the work area at the end of a shift.

Construction sites and other outdoor work

    • signage at entrances to the worksite to remind the public and workers to maintain social distancing;
    • frequent cleaning of objects touched regularly, such as buckets, site equipment and control panels, and making sure there are adequate disposal arrangements;
    • clearing workspaces and removing waste and belongings from the work area at the end of shift;
    • sanitisation of all hand tools, controls, machinery and equipment after use;
    • cleaning procedures for the parts of shared equipment after each use, thinking about equipment, tools and vehicles, for example, pallet trucks and forklift trucks;
    • where site visits are required, either trying remote site visits, otherwise site guidance on social distancing and hygiene should be explained to visitors on or before arrival;
    • encouraging visits via remote connection/working where this is an option;
    • limiting the number of visitors at any one time; and
    • determining if schedules for essential services and contractor visits can be revised to reduce interaction and overlap between people.

Factories, plants and warehouses

    • identifying areas where people have to directly pass things to each other, for example, job information, spare parts, samples, raw materials, and find ways to remove direct contact, such as through the use of drop-off points or transfer zones;
    • putting in place procedures to minimise person-to-person contact during deliveries to other sites;
    • cleaning procedures for the parts of shared equipment touched after each use, thinking about equipment, tools and vehicles, for example, pallet trucks and forklift trucks;
    • regular cleaning of reusable delivery boxes;
    • maintaining consistent pairing where 2-person deliveries are required; and
    • minimising contact during payments and exchange of documentation, for example, by using electronic payment methods and electronically signed and exchanged documents.

Shops, branches and stores

    • limiting the number of customers in the store, overall and in any particular congestion areas (e.g. doorways between outside and inside spaces);
    • encouraging customers to shop alone where possible, unless they need specific assistance;
    • reminding customers accompanied by children that they are responsible for supervising them at all times and should follow social distancing guidelines; and
    • looking at how people walk through the shop and how to adjust this to reduce congestion and contact between customers (e.g. queue management or one-way flow, where possible).

Vehicle workers

    • scheduling to limit exposure to large crowds and rush hours where appropriate;
    • revising pick-up and drop-off collection points and procedures with signage and marking;
    • where possible and safe having single workers load and unload vehicles;
    • minimising unnecessary contact at gatehouse security, yard and warehouse;
    • maximising use of electronic paperwork where possible, and reviewing procedures to enable safe exchange of paper copies (e.g. required transport documents); and
    • encouraging drivers to stay in their vehicles where this does not compromise their safety and existing safe working practice.

Other people’s homes

    • employers or agency should provide workers with information about how to operate safely in people’s homes;
    • communicate with households prior to arrival, and on arrival, ensure the household understands the social distancing and hygiene measures that should be followed once work has commenced;
    • discussing with households ahead of a visit to ask that a 2m distance is kept from those working, if possible;
    • asking that households leave all internal doors open to minimise contact with door handles;
    • identifying busy areas across the household where people travel to, from or through, for example, stairs and corridors, and minimising movement within these areas.
    • bringing your own food and drink to households and having breaks outside where possible; and
    • limiting the number of workers within a confined space to maintain social distancing.

Restaurants offering takeaway and delivery

Employment claims arising on a refusal to return to work based on safety concerns

A breach of the obligations around Health and Safety at Work can lead to:

  • the criminal prosecution of both businesses and individual managers (and it has been announced that the Health and Safety Executive will receive additional funding to increase enforcement during the pandemic); and/or
  • claims, alleging negligence, in the civil courts for personal injury.

However, aside from these well understood risks, there are additional rights and remedies afforded to employees under employment law which employers must consider and which are often overlooked.  

  1. Under the Employment Rights Act 1996 ss 100 and 44 employees are protected from dismissal (with no need for 2 years’ continuous service) and from suffering detriment if:

in circumstances of danger which the employee reasonably believed to be serious and imminent which they could not reasonably have been expected to avert, they left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of their place of work”; or

in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or other persons from the danger”.

Essentially, an employee who declines to return to return to work or leaves work citing safety concerns may be protected from disciplinary action or, for example, loss of salary.

Whether the steps which an employee took (by leaving or not returning) were appropriate will be judged in all the circumstances including the employee’s knowledge and the facilities and advice available to them at the time.

To be able to consider action against employees who leave work or refuse to return citing COVID-19 concerns, employers must be able to show they have taken all reasonable steps to address the risks and communicated the steps they have taken so it can be argued the employee is not acting reasonably in concluding there is a serious and imminent risk. In all likelihood, an employer who has not carried out risk assessments and taken steps to manage a safe return to work, including by following government guidance, will be in difficulty in taking action against employees and moreover exposed to claims if they do.

  1. Under the Public Interest Disclosure Act 1998, employees have protection when reporting malpractices by their employers including around safety (i.e. whistleblowing). In the current context employees may be quick to point to this protection and seek to link any adverse treatment with the raising of concerns.  The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a "protected disclosure" and they are also protected from being subjected to any detriment on the ground that they have made a protected disclosure.

A qualifying protected disclosure is disclosure of information which, in the reasonable belief of the employee making the disclosure, is made in the public interest and tends to show one or more of the types of wrongdoing or failure listed in the legislation which specifically includes:

    • that a criminal offence has been committed, is being committed or is likely to be committed;
    • that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;
    • that the health or safety of any individual has been, is being or is likely to be endangered.

All of which could arise in the context of health and safety and COVID-19.

Importantly, an employee does not have to prove that the facts disclosed are true, only that they have a reasonable belief in their truth and that the disclosure is "in the public interest”. The public interest requirement will likely be met in the context of a disclosure about safety in a workplace and COVID-19 and almost certainly if other colleagues may be impacted or members of the wider public are also impacted. Finally, there is no requirement for a disclosure to be made in “good faith” and so, for example, a disclosure made predominantly for an ulterior motive may not be in good faith but will still be a qualifying protected disclosure.

  1. Employees may be protected under the Equality Act 2010.

People who suffer from certain health conditions which amount to a disability may be at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to attend work, or a dismissal due to their absence, in this scenario, could amount to discrimination.

The most likely discrimination claim in a COVID-19 context is disability discrimination (for example where someone has a long-term underlying illness which would count as a disability for the purposes of the Equality Act).

Additionally, although the government guidance does not expressly require someone living in the same household as someone who is practicing shielding to stop working, the law on associative discrimination may provide protection to such a person if the person who is being shielded is disabled within the meaning of the Act. In particular, such an employee may seek to frame an allegation that a requirement to attend work, where they live with someone at heightened risk, is unlawful harassment by their employer.

Cater Leydon Millard

14 May 2020