Recent events have seen the nation come together in the face of the risk posed by COVID-19. There is much work left to do and we are, in all likelihood, only at the beginning of this journey.
Importantly, it is a journey that requires the ongoing operation of key parts of UK industry, across all sectors. Everyone is agreed however that this should not come at the cost of workplace safely. Employers must be mindful and respectful of the risk posed by COVID-19 to the workforce.
How do businesses do this, and do so in compliance with legal obligations, is one of the most frequently asked questions.
Can a business remain open?
The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 set out mandated restrictions or closures for a number of businesses. Further detail in respect of the application of these mandated restrictions and closures can be found here in our related article on this topic.
These Regulations also set out the detail of restrictions upon individual movement, stipulating that no person may leave the place where they are living without reasonable excuse. Whilst a reasonable excuse includes the need to travel for the purposes of work, this only applies where it is not reasonably possible for that person to work from home. Clearly however it is not difficult to conceive of sectors and industries where it simply is not possible to work from home and thus workers must leave their house to travel to their workplace.
So, where a business concludes that it is not subject to mandatory closure/restriction and it is not reasonably possible for its staff to work from home, operations can continue.
Ensuring the safety of your workforce
Focus upon the detail of specific measures introduced in response to the threat posed by COVID-19 should not distract from the more fundamental requirement to ensure the safety of your workforce.
Once established that a business' workplace remains operational, employers remain under key duties to:
- undertake a suitable and sufficient assessment of the risks arising in its business
- ensure, so far as is reasonably practicable, the health and safety of employees and non-employees affected by its business
These requirements apply more than ever in the current circumstances. COVID-19 poses an obvious and significant risk that must be assessed and managed by employers.
Although not the only Enforcing Authority for health and safety legislation, the Health and Safety Executive (HSE) performs an important role in the regulation and enfrocement of health and safety law.
In support of the national effort to takle the threat of COVID-19, HSE have pointed out that the Department of Health & Social Care and Public Health England (PHE) are leading the UK government response to the outbreak. They have also referred businesses to Government Guidance, namely PHE Guidelines issued on 26 March 2020.
The PHE Guidances entitled Guidance for employers and businesses on coronavirus (COVID-19) is therefore a key document use to inform the assessment of risk and implementation of steps to control risk.
PHE Guidance – what does it say?
The PHE Guidance is perhaps the most important reference tool for employers when assessing the risk posed to the workforce and required steps to manage this risk. Practical recommendations include:
- Employees should maintain a 2 metre distance from others;
- Employees should be provided with facilities to wash their hands (or using hand sanitiser gel if soap and water is not available);
- Provision of a hand wash station at the entrance of the building, where possible;
- Ensure employees are able to travel to site separately rather than in the same vehicle to ensure social distancing is maintained;
- Provision of company ID and a letter identifying employees as key workers, in case they are challenged by authorities;
- Implement procedures to ensure work areas are cleaned before and after use;
- Where possible, segregate the workforce by physical barriers;
- Ensure employees do not congregate in communal areas such as canteens, cabins, etc.
Employers take note however: compliance with the PHE Guidance does not of itself ensure compliance with health and safety law.
Every employer must carry out its own assessment of the risk and ensure that it can put in place adequate control measures.
Importantly, employers should consider specific work arrangements. As you will know, each business is unique:
- Consider any higher risk areas of your organisation. For example, employees with elderly or vulnerable members within their household, pregnant partners, or those with underlying health conditions.
- Consider unique challenges posed by your business and its work environment. Are workers required to visit members of the public's homes? If so, can they maintain a 2m distance at all times and what additional precautions should be taken? Only in very limited circumstances should work be carried out in any household that is isolating, what precautions will be applied to enforce this?
- Consider the mundane. How do workers travel to and from work? Do workers routinely lift share? What are access arrangements in your building? Are lifts in shared buildings operational and necessary?
Support may be available from industry bodies/organisations that focus upon the specific risks in your sector and are valuable tool at this time. For example, responding to a clear risk and adverse coverage of the challenges facing the construction industry, the Construction Leadership Council has prepared a bespoke Site Operating Procedure for the UK Construction Industry This deals with challenges specific to the construction sector such as: procedure if someone falls; site access points; welfare facilities; travel to/from site; and proximate working.
Note: at the time of publication of this article Version 2 of the SOP is under review following significant feedback from the industry. In the meantime, Version 1 should be applied. This feedback demonstrates that challenges that some employers will face incorporating the PHE Guidelines into workable safe operating procedures.
Crucially, you should ensure that every aspect of the above process is documented for future reference. Increasingly clients are being challenged on the steps that have been taken to manage risk in the workplace and so all employers should be prepared to justify the position.
Furthermore, if recent weeks have shown us anything it is that things can change very quickly and actions taken today may be viewed in a different light tomorrow. You should therefore prepare to be able to justify your current stance at a future date.
The UK government initiated its lockdown procedure on 23 March 2020 with a review to take place 3 weeks thereafter. As we approach that date the general consensus appears to be that the lockdown is set to continue, potentially for a significant period of time as the UK continues to battle the spread of the virus.
It is therefore of paramount importance that employers continue to review the development of the outbreak and updated Guidance as it is issued. Most importantly, they must then reflect upon and appraise existing work practices.
As part of this process, consider what steps are in place to monitor and review arrangements. If a proposed control measure is not being applied it is of no use and may result in an exposure to risk.
The above is intended to provide guidance to businesses navigating this difficult issue. UK industry has an important role to play but must ensure that workforce safety lies at the heart of this.
For further support carrying out these assessments and implementing the required compliance systems within your business, please contact a member of our specialist Health and Safety Team for support.