A key part of the Government's plan to get the UK's workforce safely back to work is the newly published COVID-19 Secure guidance. Eight distinct guidance documents intend to provide the blueprint for employers looking to assess and manage the risk posed by COVID-19 across a range of different types of work.
The importance of these guidance documents in the nation's return to work is clear. So clear that in the hours prior to their issue the Prime Minister stated in PMQ's that the requirement to ensure the safety of the nation's workforce, would be enforced through "spot checks" of workplaces to ensure that they are safe for workers.
The first task for UK industry is to review, digest, and then apply the newly published guidance on working safely during the COVID-19 pandemic.
Having done so, questions may then arise as to what this new environment of workplace 'spot checks' may look like.
Which Agency enforces these requirements?
Under Health and Safety legislation employers owe key duties to ensure the health and safety of both employees and non-employees (including members of the public). These well-established duties to assess and control risks in the workplace now extend to consider the specific risk posed by COVID-19.
Responsibility for the enforcement of Health and Safety legislation is divided between the HSE and local authorities (LAs). Which agency governs your business depends upon the nature of your work activities. Most businesses will know whether they are regulated by the HSE or the LA. If in doubt, further guidance can be obtained here.
Both HSE and Local Authority Inspectors are tasked with enforcing compliance with health and safety laws and are equipped with statutory powers of investigation so as to enable them to do so.
In recent weeks we have seen both the HSE and LAs embrace this new aspect of their work. In addition to fielding enquiries from those that they regulate they have also been proactively monitoring COVID-19 safety measures.
What might prompt a spot check?
Recent experience shows that as well as proactive inspections of what are considered high risk workplaces, spot checks (or inspections) can be prompted by concerns brought to the attention of the HSE or LAs.
Employees, union members, or the general public may 'blow the whistle' on what are be perceived to be unsafe practices. Indeed, the Prime Minister yesterday encouraged individuals to raise any concerns that they may have and there are clearly established channels through which they may do so.
More than ever before, it is vital to engage with your workforce in respect of health and safety management systems. Attempts to consult with the workforce prior to the implementation of COVID-19 control measures and then respond to issues as they arise will improve worker safety, boost morale and limit the risk of concerns being raised to the Regulator.
What form will a spot check take?
Firstly, we anticipate that HSE and LA Inspectors will look to start a dialogue with businesses; either through communications prior to an inspection or at the start of any visit. The majority of Inspectors look to ensure legal compliance by visiting premises, informing and advising businesses.
In some situations, however, an Inspector may look to approach the investigation more formally, relying upon his/her formal powers of investigations either from the outset or during the course of an inspection.
Can an Inspector enter your premises without consent?
Yes. Inspectors are provided with extensive powers to enable them to perform their duties. These include the power to enter a workplace without the consent of the owner/occupier.
However, before an Inspector can do so, they must think it necessary to enforce the requirements of health and safety law and they must do so at a reasonable hour.
There is no definition of necessity in this context. However, in the event that a concern has been raised by an employee/member of the public this will provide good justification for entering the premises to conduct further investigations. Equally, if an Inspector has themselves observed a potential breach of the law a further inspection will likely be considered necessary.
[PLEASE NOTE: during the current emergency period Regulations in force in Wales provide specific powers for the enforcement of coronavirus restrictions, including extended powers of entry]
What happens if you obstruct an Inspector?
It is an offence to intentionally obstruct an inspector in the exercise or performance of his/her powers or duties, including the power of entry.
That being said, there will be circumstances when you consider there to be an absence of proper justification for an inspection as well as compelling reasons for you wanting to prevent access to an Inspector at that particular time.
Employers and employees should exercise caution challenging such requests. However, where there are legitimate and reasonable grounds for challenging the proposed entry to your premises you should:
- Remain polite and reasonable
- Request clarification of the power(s) an Inspector is seeking to exercise along with an explanation of why this is considered necessary. Ask the Inspector to be as specific as possible to help you understand the request.
- If in doubt ask for a short delay in which to seek legal advice.
How do I prepare for a spot check?
Be aware that a spot check of compliance may not be limited to COVID-19 prevention measures and may cover any aspect of an organisation's Health and Safety compliance.
Specific focus should however be placed upon preparing for COVID-19 related enquiries. Preparation should be based around the official guidance relevant to your organisation's work activity. This guidance is intended to provide a practical framework to think about what you need to do to manage this risk.
Fundamental to compliance is the requirement to carry out an appropriate COVID-19 risk assessment. In almost all cases this will be the first document that you are asked to provide and should therefore be on hand.
This risk assessment will, in turn, identify specific actions to be taken dependent upon the work activity/environment and informed by the relevant guidance. Be prepared to provide evidence of the systems put in place to control this risk.
Guidance for each work activity suggests putting up a notice to show that you have followed the government's guidance. This is a clear and powerful indicator that an organisation has considered the relevant principles in formulating its safety management system.
Finally can you demonstrate that you are monitoring the workforce's compliance with these systems? In the event of a spot check it may be that someone has raised a concern with the HSE/LA about the implementation of your control measures rather than the control measure itself. Think about what evidence you can provide to show compliance, for example: initial staff training; daily/weekly refreshers; instructional signage; feedback from supervisors; internal monitoring/audits.
Are spot checks always carried out in person?
Increasingly no. Please see our related article looking at the growing importance of remote investigations during the COVID-19 outbreak. Telephone calls and emails by Inspectors have become much more prevalent.
The important point to note is that where appropriate steps are taken to assess and manage the risk posed by COVID-19, there is an opportunity to quickly and easily allay any concerns that an Inspector may have.
Employers should pay specific attention to the new COVID-19 Secure guidance relevant to their work activity when formulating a strategy to control the risk posed by COVID-19. Mindful of the significance of these documents and in anticipation of possible spot checks upon compliance, it is important to not only 'show your working' but be prepared to evidence the implementation of relevant control measures in the workplace.
Should you require assistance with any aspect of these preparations please contact a member of our Health and Safety team.
To read more about returning to the workplace and the health and safety regulatory considerations, please read our article covering this topic >