Despite the implementation of a three-tier system for localised restrictions, keeping up with the government's ever-changing and differing COVID-19 restrictions across sectors and locations continues to be more difficult than ever for businesses.
The UK Prime Minister introduced a new three-tier system for local lockdown restrictions on 14 October 2020. This system established a standardised set of rules for areas in 'medium', 'high' and 'very high' alert levels and aimed to clear up some of the confusion surrounding the existing messy patchwork of rules. Whilst it may be said that the new three-tier system will establish greater consistency in the lower alert levels, the Prime Minister only introduced 'baseline' measures for the 'very high' alert level and stated that consultations with local authorities will determine any additional measures. This system therefore leaves the door open for areas in the 'very high' alert level to once again have inconsistent rules, and businesses will need to continue to work hard to keep up with the different rules in each of their locations.
Perhaps of greater concern to businesses is that a plethora of workplace guidance and legislation has been published over the past few months which has left companies operating in a context of radical uncertainty with increasing ambiguity surrounding their ability to decipher what they are legally obliged and permitted to do. The new rules introduced on 14 October 2020 did not touch upon workplace guidance, meaning businesses are still having to put the many pieces of the COVID-Secure puzzle together themselves.
In contrast to the UK's complex approach, a recently published Australian draft Model Code of Practice seems to indicate that the Australian government is taking a markedly clearer, simpler and less complex approach to providing businesses with workplace guidance. We explore the main differences between the Australian and UK government's approaches below.
From the outset, the Australian draft Model Code of Practice makes it clear that, due to the nature of the COVID-19 pandemic, it is not possible for a business to completely eliminate the risks of COVID-19 to workers and other persons. The guidance instead provides practical guidance on how businesses should minimise the risk of workers and other persons spreading and contracting COVID-19 that arise from the work of their business or undertaking, so far as is reasonably practicable.
The UK guidance similarly recognises that businesses cannot completely eliminate the risk of COVID-19 and that businesses must do everything reasonably practicable to minimise risks. However, throughout the guidance, and in various government announcements, there is constant talk of employers having a legal obligation to make workplaces 'COVID-secure' which places an extremely high and, arguably, impossible burden on businesses to prevent the spread of an airborne virus which is prevalent everywhere. The use of this language by the UK government is unhelpful and unrealistic given the nature of the pandemic, and undoubtedly is a cause of concern for businesses attempting to reopen their workplaces and keep them open.
One guidance document vs many?
The Australian government's draft Model Code of Practice consists of one central document which applies to all workplaces covered by the Work Health and Safety (WHS) Act. The approved code of practice (ACOP) is general in nature and should be read and applied in conjunction with state and territory public health laws, National COVID-19 Safe Workplace Principles and Safe Work Australia's industry specific guidance.
In contrast, the UK does not have one central document providing general advice to all workplaces, and instead has released 14 separate guides for 'Working safety during coronavirus (COVID-19)' which each apply to a different industry (e.g. there are separate guides for close contact services, construction work, hotels and other guest accommodation, labs and research facilities, shops, vehicles and the visitor economy, amongst many more).
Whilst initially it may seem practical that the UK has created separate guidelines for various different industries, in practice a lot of the guidance is similar in nature and overlaps, meaning sections of the guidelines are effectively 'copied and pasted' into numerous different guides. Further, many businesses are covered by more than one of the sector specific guidance documents, meaning they will need to read, understand and follow several different guidance documents in order to comply with their legal obligations to ensure their workplace is 'COVID-secure'. For example, if you are a hotel owner, you would be expected to comply with the guide titled "Hotels and other guest accommodation: Guidance for people who work in or run hotels and other guest accommodation", but there is also another guide titled "The visitor economy: Guidance for people who work in hotels and guest accommodation, indoor and outdoor attractions, and business events and consumer shows" which will also need to be followed as appropriate.
Australia's approach of having one central ACOP supported by more specific guidance documents where necessary (rather than separate ACOPs at the outset as in the UK) provides consistency and clarity to Australian businesses. This reduces the likelihood of businesses inadvertently missing out guidance that is applicable to their workplace.
Notifiable incidents v RIDDOR reporting
The Australian ACOP provides very simple, clear and unambiguous guidance on when businesses need to report COVID-19 cases to the relevant regulator: the guidance states that "[i]f someone at the workplace is confirmed to have, or suspected of having, COVID-19, a…[person conducting a business or undertaking]…may need to notify the relevant WHS regulator under WHS laws or health agency under public health laws. You should seek advice from your WHS regulator and relevant Health Department on the reporting or other measures that are necessary for you to take".
In the UK, on the other hand, the guidance is unsurprisingly less clear; RIDDOR legislation states that an incident is only reportable if an employer receives a diagnosis in writing from a medical practitioner stating that an employee had COVID-19 that was attributable to occupational exposure, whilst the HSE's guidance states that it is for the employer to make this judgment. Regardless of whose judgment it is to make, the subjective requirement for a case of COVID-19 to be 'attributable to occupational exposure' before it is reportable makes the obligation more onerous, time consuming and complicated than in Australia, and adds unnecessary pressure on businesses who are trying to do 'the right thing', but who also want to avoid attracting unnecessary regulatory scrutiny.
Overall, it is interesting to compare the approaches of the UK and Australian governments to workplace guidance, and we may find that there is a lot to be learned from Australia's clear and straight forward approach. However, the ACOP is just in draft form at the moment and, although it looks remarkably simpler than the abundance of guidance released by the UK, it is yet to be seen how well this guidance will work in practice.
For more information on the UK's approach to workplace COVID-19 guidance, please get in touch with DWF's RCI COVID-19 Working Group using the details below.