Towards a “Covid-19 coronavirus secure” workplace: 15 key ways for UK employers to comply and manage risk
22 mai 2020
UK Employers will be busy preparing their workplace and return to work strategies in response to the UK Government’s guidance on working safely during the coronavirus pandemic (the Guidance). Here are 15 key messages from the Guidance for in-house counsel and HR teams to consider when planning how to comply, and how to manage the risks of non-compliance.
For further discussion of these points, listen to the recording of our call held on 13 May 2020.
1. Follow the Guidance in order to manage your risk
As an employer, you owe statutory duties to do all that is reasonably practicable to ensure the health, safety and welfare of your employees and to protect non-employees who visit or use your workplace from risks to their health and safety; you also owe common law duties of care towards them. While the Guidance is “non-statutory” and is not hard law in itself, following the Guidance and other official or sector-led guidance, designed specifically with Covid-19 workplace risks in mind, will help you demonstrate that you are doing what is reasonably practicable and are acting with reasonable care. However, it will not of itself discharge your duties, so you must still consider what other measures are necessary to make your workplace Covid-19 secure. Keep your compliance approach under review in light of evolving guidance, and as more employees return to work.
2. Plan a coordinated risk strategy
The stakes are high for non-compliance with the Guidance, ranging from criminal liability for alleged health and safety breaches (including for directors and managers involved), to whistleblowing claims and “naming and shaming” of employers. Identifying risk areas with key internal stakeholders such as Health & Safety, Facilities Management, Legal, Compliance, HR and PR (as well as landlords, co-tenants/occupiers and property management agents) and mapping out a broader risk strategy – to ensure, in particular, that the necessary resource is allocated, policies are fit for purpose or adapted, and managers are properly briefed – should be a priority. Colleagues in other jurisdictions may need to be involved in relation to any broader global policy considerations. Employers’ liability, public liability and Directors’ and Officers’ insurance policies should also be checked regarding cover for Covid-19 related claims, and insurers notified where claims are threatened.
3. Move quickly, but a transition phase is likely
Employers are directed to implement the Guidance “as soon as it is practical”. Some have already been considering these issues and taking steps, but the detail of the guidance means that all will have substantial and immediate work to do, with particular challenges for those who have reopened their workplaces. Against a backdrop of heightened Health and Safety Executive (HSE) scrutiny and enforcement activity, the compliance burden ahead may seem daunting. While you should move quickly to implement and to do all that you reasonably can, having regard to your legal duties, some period of grace can be expected. In the circumstances, the HSE is more likely to engage constructively with employers and allow an opportunity for concerns to be addressed before considering prosecution and sanctions.
4. There is no “one size fits all” approach
The Guidance includes eight guides for different workplace settings, more than one of which could be relevant to your business/sites. The recommendations are extensive, but you are directed to tailor and apply them to your own business environment, considering the specific actions that you need to take based on the size and nature of your business, and how it is organised, operated, managed and regulated. So you do not have to implement every recommendation, only those necessary to mitigate the Covid-19 related risks that you identify, or that employees or their representatives identify for you. The Guidance applies to workplaces in the UK, but as public health regulation is devolved in Scotland, Wales and Northern Ireland, consider any specific guidance and legislation for your workplaces located there.
5. Remote working must be the norm
For the foreseeable future, all staff should continue to work remotely and should be given the equipment and technology they need to do so safely; keep in touch with them and monitor their wellbeing. Only those who cannot work remotely should travel to work, if their workplace is open. Consider very carefully why you think someone cannot work remotely, and evaluate how such employees will get to work and whether, for those who use public transport, the risk is proportionate to the need for them to actually be in work. Limit the staff on site to those who are essential (for example, those performing critical roles which cannot be performed remotely) and to the minimum number of people necessary to operate safely and effectively, “clinically extremely vulnerable” and “clinically vulnerable” workers should be asked and advised (respectively) to work from home/remotely.
6. Be mindful of discrimination
When selecting employees to return to the workplace or to return from furlough, you should ensure that selection processes are fair and avoid potentially discriminatory criteria, particularly for disabled and older employees, women or pregnant employees who could be disadvantaged. Consider the risk of age, disability or pregnancy discrimination where you are dealing with “clinically extremely vulnerable” and “clinically vulnerable” workers (which includes pregnant workers), your duty to make reasonable adjustments to accommodate those who are disabled and to take protective measures (including potentially suspension on full pay) where pregnant workers face particular risk. Associative discrimination claims from those who live with vulnerable people are also a possibility, as are indirect sex discrimination claims if women are pressurised into returning or are excluded from the workplace (based on the presumption that women tend to assume childcare responsibilities).
7. Conduct thorough risk assessments
You already have a statutory duty to conduct risk assessments, but will be required to adapt these for Covid-19 risks in your workplace taking into account the Guidance, and to identify reasonably practicable measures you can take to minimise those risks. You should do this straight away, ideally before employees return. Remote-working risks should be considered, as should risks posed to mental health and to those in vulnerable groups such as pregnant workers. Risk assessments must be recorded and documented, kept under review and updated as necessary. The results (rather than the more detailed risk assessment documentation) must be shared with your workforce, and you are expected to publish them on your external-facing website if you have over 50 employees, so thought should be given to the presentation of the website disclosure.
8. Mental health is as important as physical health
Your health and safety duties extend to looking after employees’ mental health as well as their physical health. Employees may be experiencing stress and anxiety, perhaps as a result of feeling disconnected from the workplace, concerns about returning to work or about their job security, or as a result of illness or bereavement of family members or friends. You should identify in your risk assessment how you will seek to tackle these risks, adopt a clear communication plan to allay concerns that sets out how you plan to help employees, and provide guidance to managers on how to support them and when to escalate concerns. You should also signpost staff to any health and wellbeing support available, for example, any employee assistance programme.
9. Extensive and costly steps may be required to redesign workplaces
The Guidance provides prescriptive advice on how workplaces should be adapted, to lower the risk of infection spreading. This sets a high bar and, since implementation must be “as soon as practical”, employers should plan now what needs to be done and make those changes before employees return. Even if a measure is costly, time-consuming or difficult to implement, the HSE will still expect you to take it, unless there is a gross disproportion between these factors and the risk is insignificant in relation to the cost involved (which could be difficult to establish in the circumstances and a difficult argument to run anyway for larger employers with greater resource). In terms of process, consider the need for changes to employees’ terms and conditions, and the need to liaise with landlords, co-tenants/occupiers and property management agents in order to implement measures at premises which you rent or share.
10. Engage with your workforce
Your statutory duty to consult employees or their representatives on health and safety should encompass consultation on Covid-19 risk assessments and measures. Statutory consultation is less prescriptive than in other contexts (such as the 30- or 45-day process required on a collective redundancy exercise). Use any established channels for health and safety consultation and consult with trade union-appointed representatives (for employees represented by a union that you recognise), or otherwise with representatives elected by employees, or with employees directly. Consultation must be “in good time” and so it would be sensible to consult on return to work plans prior to implementing them. Talking to employees, being transparent and seeking their buy-in to what you do should in any event help to flush out their concerns and avert resistance later down the line.
11. Employees have a role to play
Remember that this is a two-way process and that employees have their own statutory duties to take reasonable care for their health and safety and that of others, and to cooperate with you so that you can comply with your obligations. The Guidance is directed at workers as well as employers, making it clear that everyone has a role to play. Employees should be given information and training on new procedures so that they know what is expected of them, and consultation should also assist in enhancing their understanding of these.
12. Screen with caution
Screening may have been viewed with a high degree of scepticism pre-lockdown, but it is becoming generally more accepted (and welcomed by employees) given the health and safety imperative of ensuring a Covid-19 secure workplace. You may also want to consider what others in your sector are doing. To implement screening lawfully, you will need to obtain the employee’s consent, or you will need to be able to show that it is a reasonable instruction that they should undergo screening. Explain to employees your reasons for screening, the safeguards to be put in place where testing is conducted, and the consequences if they refuse. The UK Information Commissioner Office has published guidance confirming the legal bases on which you can process this type of health data (as special category data) in a manner compliant with the General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018, but you will also need to consider other key GDPR principles when handling it – including conducting a prior impact assessment, processing the data transparently and securely, and only to the extent necessary for the purpose for which it was gathered.
13. Personal protective equipment (PPE) is usually unnecessary
Workers who are already using PPE to protect against non-Covid-19 risks should continue to do so. However, the Government considers that Covid-19 risks need to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE. Unless there is a very high risk of disease transmission and a risk assessment identifies that PPE is required, the Guidance considers it unnecessary and advises against precautionary use. If workers choose to wear a face covering (which is optional), you should support them in wearing it safely. You should also consider supplying workers with face coverings for travel into work in light of separate Government guidance advising passengers to wear them on public transport.
14. Be reasonable, but you can still be robust
A recurrent theme of the Guidance is that employers need to act reasonably, to support employees in adjusting to a new working environment and to be sensitive to their needs. This includes making “socially responsible decisions” in relation to those who are anxious about travelling into work or returning to work, and accepting their concerns at face value. However, this does not prevent you from managing employees robustly where necessary, for example, by withholding pay for unauthorised absence, suspending (with pay) on health and safety grounds, requiring leave to be taken, or managing performance concerns or misconduct. Dismissal also remains an option, but in the unprecedented circumstances, and given that the law is slanted in the employee’s favour, you should tread carefully before using it.
15. Keep everything under review
We are at Step One in the Government’s lockdown exit plan, which continues until the end of May, with Steps Two and Three commencing no earlier than 1 June and 4 July 2020, respectively. These are still early days in the national recovery process, and the risk of a second wave of the virus remains, which could take us back to lockdown. Keep your risk strategy and the measures that you are taking under continuous review, which you are in any event required to do as part of your health and safety obligations. This is not only with a view to increasing or maintaining compliance, but potentially with a view to scaling back measures as restrictions are lifted and the risks subside. Consider too how your decisions now could shape your workplace in the longer term, particularly your attitudes to flexible working and the impact on diversity.