Keoghs Insight

Author

Kathryn Turner

Coronavirus – UK Health & Safety Obligations

Blogs06/04/2020

The new coronavirus disease, officially named COVID-19, has been declared a pandemic by the World Health Organization. As the virus continues to spread extensively, it’s placing huge strain on all members of society, from individuals to large organisations. The context of a global pandemic is also relevant as this may place significant restrictions on materials, equipment and personnel available to implement control measures.

Employers and premises owners have clear legal obligations under UK health and safety legislation. This note provides an overview of some of the steps employers can take to respond to the threat whilst supporting employees and ensuring compliance with the law.

What does the law say?

Employers have a statutory duty of care for people’s health and safety, and to provide a safe place to work, but there’s also a strong moral responsibility to ensure that employees feel safe and secure in their employment.

The starting point is the Health and Safety at Work Act 1974 (“HSWA”).

Three overlapping general obligations apply to employers: 

  • The duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees (s.2(1) HSWA);
  • The duty to ensure, so far as is reasonably practicable, that other people are not exposed to health risks as a result of the employer’s activities including members of the public, service users and contractors (s.3(1) HSWA);
  • The duty to manage safety risks from workplaces under the employer’s control (under the Workplace (Health, Safety & Welfare) Regulations 1992).

The first thing must be to review existing arrangements for risk management in the light of the changed pandemic circumstances.

Risk Assessment

Regulation 3(3) of the Management of Health and Safety at Work Regulations 1999 provides: 

“Any assessment… shall be reviewed by the employer if:

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates…” 

The coronavirus pandemic most certainly amounts to a ‘significant change’ and employers will be required to consider how the virus threat changes risk assessments currently in place. In reality, where a business has multiple risk assessments in place and re-writing an entire suite of documents would pose a significant administrative burden on employers at an already stretched time, a practical solution might be to prepare a single ‘coronavirus risk assessment’. This can then be distributed to relevant parts of the workforce to be read in conjunction with existing procedures and updated as necessary to reflect the changing situation over the coming weeks and months.

It should be remembered that what is reasonably practicable depends on the risk to health and safety weighed against the cost - measured in terms of money, time and resources - involved in eliminating the risk. The greater the risk, the more the duty holder is expected to do to address it.

Some judgments will be easy and many staff may be able to work at home. But what about where work absolutely cannot be done from home, for example, those engaged in manufacturing or construction sectors or those delivering a front line service? What about workers who are particularly vulnerable to the virus, for example, pregnant workers or those with underlying health conditions or disability? Employers should also consider the impact of a dwindling workforce where employees follow the Government’s self-isolation advice.

The level of risk will vary depending on factors such as travel and the type of work, and particularly the potential for close contact with infected individuals. The employer must identify control measures which will eliminate or, where this is not possible, minimise the risks which emerge from the risk assessment.

Risk assessment should take account of the latest guidance from Public Health England and Public Health Scotland, and should be reviewed as advice changes. The Health and Safety Executive (“HSE”) has a section on its website dedicated to infections at work which is likely to be particularly helpful when conducting a risk assessment and identifying control measures.

In short, work may only continue if a risk assessment shows that the risks associated with coronavirus can be reduced to a tolerable level, taking account of the prevailing guidance. If precautions such as social distancing cannot be ensured, and the work does not involve delivering a front line service, it should not be undertaken. Where work can be safely undertaken, innovative solutions may be required. Employers should consider the viability of alternative working hours, split shifts and remote working.

Home Working

 As home working rises across the globe, businesses are presented with new issues to manage. As an employer, you have the same health and safety responsibilities for home workers as for any other workers and a number of practical considerations will arise. Consider: 

  • How will you keep in touch with employees who are home working? Will any additional supervision or support be required? 
  • Will any work equipment be required to enable employees to fulfil their role and create the right conditions for work? It is important to remember that any office equipment sent home is safe and without risks to health and safety. 
  • How will you risk assess work activities carried out by employees working from home? Undertaking a physical risk assessment of each employee’s home is clearly not feasible. Consider instead providing workers with advice on completing their own basic assessment at home. 
  • How will you ensure data protection obligations are maintained and that employees using their own computer process information in compliance with data protection principles? Consider reminding employees about home security, confidential information, passwords, shredding etc.

It is important for employers to set expectations but be prepared to flex.

Stress & Mental Health

An employer’s obligation extends to the mental health and safety of employees just as much as the physical.

Home working in itself can cause work-related stress and affect people’s mental health, and that is before the additional anxiety created by uncertain times, potential health concerns and those juggling caring responsibilities with the day job. Being away from managers and colleagues can also make it difficult to get proper support.

Where you have provision in place (for example through a health insurer or employee assistance scheme), remind employees where they can go for professional help and support. Make sure you listen to any concerns and encourage discussion.

Practical Steps

Health and well-being, and stringent measures to prevent the virus from spreading, should be at the heart of every employer’s response. Some practical steps which may assist your response include:

Keep up to date with Government and public health advice: This is a very fast-moving issue. Employers should keep up to date daily with the situation as it develops using official and expert medical sources such as GOV.UK, the National Health Service and NHS 111 online coronavirus service.

 If your business is permitted to remain open, use basic but effective ways to help prevent the infection’s spread:

  • Make sure your workplace is clean and hygienic – consider more frequent cleaning of communal areas such as kitchens and break out areas; and
  • Promote regular and thorough hand-washing by everyone – remember to ensure there is sufficient hand soap and sanitiser available.

Communicate with your workforce: Many people will be concerned about the risk of infection and will need reassurance. Keep employees informed about your organisation’s policies and contingency plans, particularly in relation to the specific guidelines for employees who have been in contact with an infected person or have symptoms of the virus. Make sure everyone, including managers, understands which sick pay and leave policies apply and how these will be implemented. 

Regularly review your contingency plan: The plan should take account of current and potential impacts of the virus and manage the specific business risks associated with the disruption, including service delivery and workforce issues. Training additional employees in specific skills could be considered. Ensure that procedures are developed to ensure smooth handovers for employees who are filling in for colleagues in unfamiliar roles. It may be necessary to provide additional training and a risk assessment if individuals are moving to roles where there may be a health and safety risk.

Summary

These are unique and demanding times for everyone. It is hugely important that you monitor what is happening, engage with your colleagues, listen to suggestions and adapt your approach as needed. Failure to do so could not only lead to enforcement action by regulators once everything calms down, but more importantly could adversely impact crucial relationships with your workforce, customers and supply chain. Emphasise that you can only succeed as an organisation and protect your people and the business if you all pull together.

Stay Safe!

For further information, please contact Kathryn Turner.