The coronavirus pandemic is presenting us all with a number of challenges.
And one of the serious challenges confronting employers is their duty to protect their workforce. Both those at home and, if they are still working, in the workplace be it care homes, manufacturing or outdoors.
Employers have a well-established primary duty towards their workforce under health and safety law. They need to take all practical measures to reduce their employees’ exposure to risks that endanger not only their health, but their safety and welfare. This is not just about physical well-being, but mental as well.
Assessing the risk
They also have a duty to assess ongoing and new risks arising from their operational activities. Once a risk has been identified, it must be assessed to ensure the employer has identified, where practically possible, any potentially harmful risks. They then need to set out measures to mitigate or eliminate such threats.
The problem is that with the coronavirus, it is inescapable that the more an individual comes into contact with others, the more they are exposed to infection. Some organisations will already have well understood infection control policies in place, but for most this requires new ways of thinking, adapting and operating.
Employers have to balance all of these risks with the Government’s desire to keep business open, where practical, and for the organisation’s own ongoing viability.
The Government and other bodies have issued statements and guidance on this issue. In early April, the HSC, TUC and CBI, rather unusually, issued a joint statement about health and safety in the workplace. They warned that, however difficult the current circumstances, employers are expected to comply with Public Health Guidance, such as social distancing. Any that were deliberately flouting the rules and operating in an unsafe manner could expect action to be taken against them, including enforcement notices.
Asking the right questions
To ensure that they stay safe, there are a number of practical questions employers should be asking themselves. The answers to which may well mitigate risk and help show they are taking all reasonable steps to ensure the safety of their workforce.
● How do you decide if it is safe for an employee to go to their normal workplace?
● Do your staff understand the circumstances when they should not attend work, e.g. as part of infection control?
● In the current climate, how easy and safe is it for individuals to get to work?
● How safe is the exit and entry to the workplace and other pinch points?
● Are wash and rest areas safe?
● How do you protect necessary contractors and others that still need to come to site, e.g. delivery drivers?
● Can social distancing be maintained?
● Do you have to change working arrangements to make them safer?
● Is there sufficient hand washing facilities that can be safely accessed?
● Is a deep cleaning regime necessary or desirable?
- Do you need to step up workplace cleaning at the start, during, or at end of the day?
- Who will do it, and do they have the right equipment and PPE to undertake it?
● Is protection equipment necessary or desirable, and for what type of jobs?
● Are there sufficient notices about hand washing, personal health, social distancing and how to identify the virus?
● Do people understand how to work safely at home, and be able to regularly communicate with colleagues to reduce issues of isolation and anxiety?
● Where workplaces have suddenly changed, due to a mass exodus to home working, have temporary self-assessment risk assessments happened?
● Have you identified vulnerable individuals?
- What actions have you taken to ensure their safety?
- Do they need to self-isolate or shield and, if so, for how long?
● How experienced are people at undertaking dynamic risk assessments where their working environment creates ever changing issues?
● What do Government guidance and trade bodies advise us to do?
Your answers to these and other questions should guide and drive your actions.
There are useful Government guidelines on social distancing, specifying which businesses should be closed, along with a number of sector guides and general guidance on mental wellbeing.
Coronavirus is an extremely dangerous disease, as the number of deaths in the UK and the rest of the world demonstrates. But businesses are continuing to operate, and to operate safely.
Reasonable and effective health and safety measures are expected in any circumstances that an organisation faces. Employees are also expected to read, understand and where possible, make suggestions about their health and safety policy. And once agreed, are expected to follow adapted measures and rules put in place to minimise infection.
To ensure you continue to operate safely, your staff should be warned that failure to adequately follow the provisions of your health and safety policy, amended for the current environment, could result in disciplinary action.
A word of caution
Finally, however, we do need to sound a note of caution. While all employees are expected to follow your guidelines, if they raise concerns, your first instinct should not be to take action against them. Listen carefully to what they have to say. They may, after all, have some very legitimate points to make.
In addition, normal employment law still applies, even in difficult circumstances. Dismissing, disciplining or any other form of detriment to people for raising concerns can breach the Employment Rights Act, and be automatically unfair (regardless of length of service). It is also likely to be seen as taking action against a whistle-blower.
Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.
