The ‘COVID-19 secure’ guidelines comprises eight separate guides, each covering a different type and location of work, which have been developed in consultation with businesses, unions, industry bodies and the devolved administrations in addition to Public Health England and the Health and Safety Executive (HSE):
The Government has said that guidance for other sectors that are not currently allowed to open will be developed and published in advance to allow them time to prepare before allowing staff back.
The advice remains that where possible, employees should still work from home and employers should take ‘all reasonable steps’ to enable them to do so. For those unable to work from home, and whose workplace is allowed to open, the Government is keen to encourage workers to go back to work as soon as possible.
In practice, this will mean that employers will need to carry out COVID-19 risk assessments, which should be done in consultation with workers or trade unions (where a trade union is recognised in the workplace). Employers with over 50 employees are expected to publish the results of their risk assessments.
Under the Health and Safety (Consultation with Employees) Regulations 1996, in workplaces where a union is not recognised employers are under a duty to consult with employees 'in good time’ on matters relating to their health and safety at work. Consultation can either be with the employees directly, or with elected representatives. The HSE has produced new guidance on working safely during the coronavirus outbreak and talking with your workers about preventing coronavirus.
Measures to reduce risks
The Government guidance states that in order to properly manage the risks of transmission within the workplace, employers will need to maintain the two metres social distancing requirement as far as is possible, including measures such as staggering start times, creating one way walk-throughs and changing seating layouts. If the two-metre rule cannot be maintained, employers should consider putting barriers in shared spaces and adjusting workplace shift patterns. In addition, workplaces should be cleaned more frequently, with additional hand washing facilities or hand sanitisers provided at entry and exit points.
The guidance stresses that for managing the risk of COVID-19, the use of additional PPE beyond what a worker would usually wear is not regarded as beneficial, other than in clinical settings or a small number of other roles (such as first responders and immigration enforcement officers). Workplaces should not encourage the precautionary use of extra PPE unless the risk of COVID-19 transmission is very high. However, the guidance recognises that there may be some circumstances where wearing a face covering may be marginally beneficial as a precautionary measure, in enclosed spaces where social distancing isn’t possible. It should not be encouraged as a replacement for the other measures recommended to manage the risk of transmission, such as social distancing. The guidance states that employers should support their workers in using face coverings safely if they choose to wear one, but this is optional and not required by law.
Managing employee concerns
Acas guidance for employers and employees has also been updated with a new section on ‘working safely and social distancing’, including advice on planning to return to the workplace and consulting with staff and employee representatives. This guidance acknowledges that some people will be anxious about safety and reluctant to return to work, advising employers and employees to ‘talk about any concerns and try to resolve them together’.
With the results of a recent CIPD survey suggesting that 44% of workers are feeling anxious about the prospect of going back to work because of the perceived health risks, one of the biggest hurdles for employers may prove to be convincing workers that it is safe for them to return to work.
Employers should take into account an individual’s reasons for being reluctant to return to the workplace. If this is based on their own or a family member’s particular vulnerability to contracting the virus, or if it is due to caring commitments meaning that they are unable to return without childcare provision in place, employers need to be mindful of their obligations towards such employees. The Government’s job retention scheme has just been extended to the end of October 2020, meaning that employers can still keep certain workers, for whom a return to work presents particular difficulties (and where homeworking is not possible), on furlough leave at least for the time being even when other employees are back at work.
If workers have legitimate concerns over their health and safety in the workplace and have a reasonable belief that they are in ‘serious and imminent’ danger, they have a legal right to leave the workplace and refuse to work. This may apply in a workplace where there is a high risk of contracting COVID-19 and where the employer has failed to put in place adequate health and safety measures to mitigate the risk. A dismissal of an employee for this reason, or for raising concerns about the health and safety risks, is likely to be automatically unfair under section 100(1) of the Employment Rights Act 1996. There is no minimum qualifying period of service to bring such a claim and compensation is unlimited.
Employers therefore need to tread carefully before taking disciplinary action against employees who have raised health and safety concerns or who refuse to return to work. Carrying out proper consultation with staff (or their representatives), listening and taking on board their concerns and taking appropriate measures to address risk before expecting them to return to work, should help to avoid such claims.
Clearly many employers will have a great deal of planning and preparation to do before they can consider allowing their employees back to the workplace. Employers should be taking the following steps in advance of encouraging their staff to return:
- carry out a full risk assessment of the workplace, taking into account the type of working environment and following the latest Government guidance. Be aware that different parts of the guidance may be applicable to different sections of your workforce. See the HSE website for more information on conducting a risk assessment. Keep a record of all risk assessments you carry out
- share the results of the risk assessment with your workforce and consult with them (either through union or elected representatives, or directly with employees) about proposed measures to mitigate the risks specific to your workplace. Consider what further steps you can take to reduce the risk in response to employee feedback, as part of the consultation process
- be prepared to address individual concerns about a return to work, particularly from those who are at increased risk or who having caring responsibilities. Ensure that your managers are sympathetic to such concerns and know how best to respond
- keep the situation under review to ensure that your workers feel safe by responding promptly to any future concerns they raise. Watch out for any changes in the latest Government guidance and be prepared to take swift action in the event of further lockdown restrictions taking effect.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2020.