It is nearly two years since we sent a previous newsletter, which is when we updated our Employment Details Forms for new and existing employees, to reflect changes in Data Protection legislation (GDPR).

The end of the transition period, after leaving the EU, on 31st December 2020 meant we needed to review the right to work section of these forms in the light of new immigration law. The good news is that there are no significant changes to either the List A or B documents that need to be checked.

We have, however, taken the opportunity to include provision for Online Checks, which are likely to be an easier option for both parties, especially in the current climate, where face to face meetings may be difficult, and Post Office delays may make people more reluctant to post documents. It must be stressed that online checks, which have been available since 2018, only apply to migrants, so will not work for the majority of job applicants.  It gives employers access to up-to-date, real-time information about migrants’ right to work, making it easier for individuals to prove their rights in the UK. The Right to Work Checking Service is secure and free to use, and means that employers can use the online service to demonstrate they conducted the necessary right to work checks on migrants.

Do not forget that job applicants are protected against discrimination relating to race. The nature of right to work checks opens up the risk of a race discrimination claim if employers treat people differently based on their race, or perceived race when carrying out these checks. The same documentation and checking processes need to be completed on all prospective employees (and current employees where appropriate), without making assumptions based on appearance or name, without seeing evidence.

For those unfamiliar with doing these checks, there is a 3-step process:

Step One: Obtain original documents from the prospective employee prior to starting employment, or at the latest, on the first day of employment.

Step Two: Take all reasonable checks to verify that the document is genuine, relates to the actual prospective employee, and does not exclude the right to work in that particular type of work.

Check:

  • Photographs are consistent
  • Dates of birth are the same
  • Names are consistent or evidence of a name change
  • Qualifications are current and consistent with other documents
  • They are genuine and have not been tampered with
  • They relate to the person providing them.

Step Three:  Copy the document in a non-alterable format and keep securely.

They need to be retained securely for the length of their employment, and at least two years after that. We recommend that the checker writes the date of checking on the copy, and signs it as a certified copy. All of the document ought to be copied, unless the document is a passport or travel document in which case just copy

  • The front page
  • Any page containing personal details, e.g. photograph and date of birth
  • Any pages with a UK Government right to work endorsement

We have made a few minor changes to the wording, e.g. to reflect that it is now simpler for UK nationals without British passports, to demonstrate their citizenship by enabling them to use short birth or adoption certificates, which they can get for free, instead of the long versions.

Other form changes

Whilst we were making these changes, it seemed like a good idea to review the rest of the forms, not least because of changing requirements and sensitivities.  For example, we have removed some information that is no longer required. The medical questions have also been slightly amended so that they now read better.

You will also see that we refer to the word “worker” rather than “employee”, as it is important that you undertake the right to work checks for everyone that works for you, which will include casual workers and those with contracts for services.  Also, it is advisable to have their personal contact details to hand should you need them, although other sections of the form may not be relevant to them.

In light of the way that driving licences are now verified, i.e. electronically via a shared code, and the fact that driving offences are also subject to time limits, we have re-worded the driving licence details section within the New Starters form, and added into the Existing Worker form, as employer’s still have a duty of care to check all their existing workers are allowed to drive, even if that is only to drive to and from work in their own private vehicles.

The words about privacy in relation to data protection have also been amended.

Please note that we have changed the declaration wording to reflect the fact that if people have been ‘misleading’, then they will be dealt with appropriately according to their length of service.  This means employees with less than 2 years’ service will not be subject to the full obligations of the Disciplinary Procedure, but will be dealt with appropriately via the simplified three step process.

The form for new workers should be used with immediate effect.  It is recommended that, unless clients have conducted a thorough review of all workers’ personal details recently, that they take the opportunity to update the personal data they hold on their workforce, as data protection law requires. Despite exhortations and contractual obligations, workers are often very tardy in updating their employers about addresses, personal contact details (email and mobiles), medical details, and relevant driving licences etc.

Right to Work Checks during Covid 19

Checks continue to be mandatory, and employers must continue to check the prescribed documents. Right to work checks have been temporarily adjusted due to coronavirus. This is to make it easier for employers to carry them out.

Since March 2020, the following temporary changes have been made:

  • Ask the worker to submit a scanned copy or a photo of their original documents, via email or using a mobile app, rather than sending originals
  • Checks can now be carried out over video calls; ask them to hold up the original documents to the camera and check them against the digital copy
  • Record the date you made the check, and mark it as “adjusted check undertaken on [insert date] due to COVID-19”
  • If the worker has a current Biometric Residence Permit or Card, or status under the EU Settlement Scheme, you can use the online right to work checking service while doing a video call – with the applicant‘s permission to view their details

If the job applicant or existing worker cannot show their documents, you must contact the Home Office Employer Checking Service. If the person has a right to work, they will send you a ‘Positive Verification Notice’. This provides a statutory excuse for 6 months from the date within the notice.

When the pandemic ends, employers will be asked to carry out retrospective checks on existing workers who started working during these measures, or required a follow-up right to work check during these measures i.e. whose documents were the List B category.

We will be running a free webinar on right to work checks within the next month, so if you are already on our database you will be sent an invitation to register.  However, if you are not and you would like to receive invitations to our webinars etc., please contact Jackie Bolton on 01480 677981 or jackie@backuphr.com.

If your organisation has not already been doing right to work checks, then we suggest that you listen to our webinar, and start retrospectively undertaking these checks, in order to potentially avoid the quite substantial penalties that the Home Office can issue, which include:

  • a civil penalty of up to £20,000 per illegal worker;
  • a criminal conviction carrying a prison sentence of up to 5 years;
  • an unlimited fine;
  • closure of the business, and a compliance order issued by the court;
  • disqualification as a Director;

We would recommend that even if you are not able to listen/participate on the actual day, if you register for the webinar, you will still receive a recording (including a copy of the presentation), which you can watch at a more convenient time.

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

A recent case before the Supreme Court has caused some rather unexpected ripples.

The details of the case are not important, but it was about how Coroners handled verdicts of suicide. The Supreme Court held that in cases where a verdict of suicide is reached, the burden of proof now only has to be “on the balance of probability” that the victim intended to take their own life. This is known as the civil level of proof, rather than the criminal level of “beyond reasonable doubt”.

So far so good, and this would appear to have very little to do with health & safety law. But the Chief Coroner, apparently wanting clarity on a similar verdict, on lawful killing, asked for it to be considered at the same time by the Supreme Court. Both verdicts are known as short form conclusions.

It is also rumoured that the Chief Coroner asked for this to be done so that Courts did not subsequently decide that both Short Form verdicts should be treated the same. In other words, the Supreme Court would make a distinction and retain the higher level of burden of proof for unlawful killing.

Be careful what you ask for. The Court, on a majority verdict of 3-2, so hardly convincing, has decided that the civil level of proof should apply to unlawful killings as well. This now has a significant effect on employers.

Until now, obtaining a verdict of unlawful killing needed a very high burden of proof. And without that verdict, it was unlikely that the Crown Prosecution Service would pursue any employer after an accidental death at work for corporate manslaughter or gross negligence. By making such outcomes more likely, it raises the prospect of far more prosecutions in these circumstances.

This has caused considerable debate in legal circles. Some have questioned the original decision, many have questioned the decision to include unlawful killing and suicide in the same verdict, and others have pondered on the long-term effect of this change in the law.

What most seem to agree on, however, is that interested parties (families on one side and employers on the other) in Coroners’ decisions will almost certainly take a much more active interest. Families aggrieved that any employee has potentially been unlawfully killed will seek to intervene much more in the Coroner’s investigation. Employers will seek to protect themselves far more, with all of the subsequent legal costs and possible media interest that such cases attract.

And long-term, we can expect an increase in prosecutions in this area. A reminder that corporate manslaughter can be extremely serious for an organisation if it is proved. Courts have the ability to levy unlimited fines and custodial sentences for responsible persons. In employment sectors where life threatening industrial accidents are more likely to happen, responsible employers are already taking enormous interest in their employees’ health and safety.

But with the extension of the law, and the lowering of the burden of proof, we are certain that more employers in other employment sectors will be caught in this net sooner or later.

This is yet another reason to take health and safety very seriously. If you are unfortunate enough to have a fatal incident at the workplace it can have profound legal implications for the organisation. Not to mention a very negative impact on employee morale and your own ability to sleep well at night.

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

A landmark case, which we have reported on before, will have a significant impact on employers who manage agency workers and those in the “gig economy”.

The case, involving the Independent Workers Union of Great Britain, means that workers are now entitled to the same protection as employees in certain aspects of health and safety. In particular, if they suffered detriment because they have decided to protect themselves from serious and imminent danger, on health and safety grounds such as COVID-19.

The crux of the case was that the UK Government had not implemented some aspects of European health and safety law. Especially with regard to limb (B) workers. These are typically couriers, taxi drivers, delivery personnel etc.

Under existing health and safety law, employers are under a general duty to protect the health and safety of not just employees, but others who may be affected by their business operation. As a result of this case, sub-contractors, agency workers and those in the gig economy will now have the right to refuse work that they do not believe to be safe, and will need to be provided with PPE, if necessary, by the employer.

Of course, the current situation is complicated by Brexit. Nobody knows quite how European law is going to continue to be incorporated in UK law over the next few years. However, as a result of this case, experts are certain that existing law will continue to apply after we leave the EU, until the Government decides to change it.

So, employers should consider taking the following actions, to make the situation clear for both workers and their Managers.

  • Clarifying workers contracts so that all parties understand their rights;
  • Ensuring that the Employment Handbook or policies address the treatment of workers to ensure that it is compliant, or, have a separate Handbook specifically for workers;
  • Similarly, update workplace risk assessments and procedures to ensure that they apply equally to workers as well as employees;
  • Ensure that workers are conversant with your operational and safety procedures, risk assessments and employment policies;
  • Understand where workers, as well as employees, needs to be provided with PPE;
  • Train line Managers to understand that all of their workers, not just employees, need to be provided with the relevant information, instruction, training and supervision to ensure their health, safety and wellbeing is looked after;

It is easy to think that because you sub-contract work to those who are either employed for another organisation, or who are self-employed, you do not have the same responsibility for their welfare. Actually, employers have a very wide responsibility for all of those who visit their premises, including customers and visitors, and this extends to third parties like delivery drivers, who are entitled to access to toilets.

It is important that employers understand what these changes mean, as it is easy to fall into the trap of thinking that your duty of care to workers is lower.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

If there is one issue that employers are particularly concerned about at the moment, it is the treatment of the extremely vulnerable.

There are two sides to the problem – situations where either the employer or the employee does not want to come onto site, and those where either party is desperate for them to return to work. Sadly, at the moment, there are often situations where whichever one side wants, the other is very nervous about.

Much has been written about shielding, which officially ended on 31st July, and employers’ duty of care to all of their employees, particularly to the clinically extremely vulnerable, to whom the employer has an even higher duty of care as this virus presents a serious and imminent danger to health.

The extremely vulnerable are clinically defined, those having an illness or a condition that would make them particularly susceptible to a coronavirus infection, and those over 70.

Since 31st July, it has been a decision for both sides, employer and employee, to make between them as to where an employee can work, and whether this is feasible. It is perfectly acceptable for the clinically extremely vulnerable to attend work, but the workplace must have been properly risk assessed, and be well enough organised for them to do so safely.

The vulnerable are also expected to work. We would advise employers to continue to talk to employees with less severe health issues than the clinically extremely vulnerable. Many of them are anxious about being at work, yet some are keen to remain working in one way or another.

The same applies to employees that live with, or support, vulnerable members of their family, as it is apparent that there are many misconceptions about what they should do.

The Government also has better data on new infections, and since the recent lockdown has introduced local COVID alert levels, with rules and advice based on the level of risk in a local area, known as the 3-tier approach.

We recommend that employers undertake an individual risk assessment with each affected employee. This risk assessment would not only identify how safe the COVID secure work environment is for them, but specify other control measures that might be needed in their case.

Such measures could include:

  • Screening and ventilation around their workstation;
  • Moving them to a different role where perhaps they are less customer facing, or have less interaction with other members of staff;
  • Allowing them to bring their own facemask into work to reduce their exposure;
  • Temporarily giving them different duties, which could be performed from home;
  • Changing their hours or shift patterns so they avoid crowded public transport, or interaction with colleagues;

Every situation will be different, hence the need for an individual risk assessment. The Government has said that in cases where furloughing is not possible, SSP is the fall-back position. Harsh, because SSP is less than £100 a week, but better than nothing at all.

Even before 1st August, we were being asked how to handle the clinically extremely vulnerable employees who want to return to work. Is it a request that an employer has to grant?

Once again, it will depend on the circumstances of the individual, and the situation at work. If the employer, having carried out an individual risk assessment with the person, deems it safe, then the employee can return. It will mean implementing appropriate and possibly additional control measures.

If, on the other hand, the employer still feels that there is too high a risk to the individual, then they may have to gently suggest, or insist, they remain at home, explaining that they would be failing in their duty of care as an employer, to let them back into an environment that currently has too high a risk to them. Nor can an employer ask the employee to indemnify them against the risk if they are allowed back to work. This is a meaningless act, as the employer cannot discharge their health and safety responsibilities solely to the employee.

It is a difficult balance of risk for employers and employees, especially where some employees feel that their mental well-being is suffering more than their health by being kept at home.

And while some employers/Managers are extremely keen to see a full team once again, remember the Government’s continuous guidance – work from home wherever it is possible.

This is not simply a question of protecting the individual by keeping them at home, it reduces the demand on public transport and the transport network, and reduces the number of interactions between travelling employees before they even get to the workplace. Especially during times of high infection, such prudence has proved instrumental in managing the current outbreak.

No one is advised to follow formal shielding advice again, unless they receive a new shielding notification advising them to do so. From now on, refer employees to the new local COVID alert levels for your area. If employees are required to travel into an area at a different local COVID alert level (for example to go to work), they should follow the guidance for whichever area has the higher alert level.

Work advice for clinically extremely vulnerable people at all local COVID alert levels
Everyone is currently advised to work from home where feasible.

If people need support to work at home, or in the workplace, they can apply to Access to Work, who will provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments an employer must provide. Such people are very likely to be disabled. Access to Work is a Government organisation who do much good work, advising on, and supporting reasonable adjustments, to keep people in work or get them back to work. Failure to use them may be held against employers who do not attempt to make adjustments.

If they cannot work from home, they can still go to work.

Employers are required to take steps to reduce the risk of exposure to COVID-19 in the workplace, and should be able to explain the measures they have put in place to keep them safe at work, and provide the risk assessments to support their rules.

There are three ‘threats’ to employers who are not managing the risk of COVID-19, in that the Health and Safety Executive (HSE) and local authorities can take action ranging from ‘specific’ advice’, issuing enforcement notices, stopping certain work practices until they are made safe. The second threat for flagrant breaches of the rules and disregard for employees’ welfare is prosecution. Finally, there is always the possibility of a personal injury claim for employers whose negligence causes someone to suffer serious illness.

So, in summary, as we have oft repeated this mantra:

  • judge each case by its merits;
  • talk to each and any employee whose health (and/or age) means they are vulnerable;
  • be reasonable when agreeing what actions to take; and
  • document what is done;

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

As there is still a lot of uncertainty surrounding when BackupHR will be able to safely start running its public training events, we have taken the decision to revise our training programme for Spring 2021 and thereby start our events later in the year.  However, these dates may still change.

At the beginning of the year, we will be running three free online webinar training events, namely:

How to avoid a tribunal claim in a Pandemic – 14th January 2021 

How to depart short service employees – 11th February 2021

How to undertake training & induction in the new era – 11th March 2021

The following three interactive courses are a must for new Managers, as well as being good refreshers for experienced Managers, as case law and good management practices continue to evolve over time.  They will cover much of the knowledge and many of the skills needed to be a successful Manager of people.

Acknowledging Good and Dealing with Poor Performance – Newmarket – 22nd April 2021

How do you decide that someone is performing well?  If they are, how do you encourage them to be even better, and if not, what do you do about it?  These are challenges which Managers face on a daily basis.

This course helps Managers with these issues by having realistic expectations on what people are capable of doing; knowing when to use performance improvement plans and programmes for personal development; whilst continuing to motivate and encourage good performers.

Employment Law Myths & Essential Policies – Norwich – 11th May 2021

Managing people often strikes fear and dread into Managers, but it does not have to be that way.  By coming along to our short, but informative course, Managers will gain the confidence needed to manage people, and most importantly, avoid finding themselves on the wrong side of employment law – which can be costly!

Based on our extensive HR experience, we will talk about the most misguided beliefs that Managers hold as fact about employment law.  We will also discuss the most frequent mistakes Managers make when dealing with staff; as well as difficulties created through lack of documentation, or not knowing or following their own employment procedures.

We will identify the key employment policies and why Managers need to be familiar with them.  This should also assist Managers to understand the importance of why these policies need to be applied correctly.

The course will debunk myths to make sure you avoid fear and confusion when dealing with staffing issues.  We’re here to give you the confidence to manage people effectively and we’ll do this through fun interactive sessions and an extensive quiz to help reinforce the learning.

We have designed the course to suit those who are new to Management, as well as being a worthwhile refresher for the experienced Manager, looking to enhance their knowledge.

When Can and Should you Dismiss – Norwich – 17th June 2021

Dismissing staff can have serious implications if done badly.  The law requires that you have a fair reason for dismissal (e.g. restructuring is not necessarily redundancy), and that you follow fair processes.

This course will cover the differences between a fair and unfair dismissal; why following the ACAS code and internal procedures is essential; and the key practical issues to consider when dealing with discipline, dismissal and redundancy processes.  The aim of the course is to encourage delegates to follow proper procedures and apply sound judgement.

We have designed the course to suit those who are new to Management, as well as being a worthwhile refresher for the experienced Manager looking to enhance their existing skills, and wants to be more successful by learning new/different approaches.

All our training courses are highly participative, practical in content, and are intended to challenge our delegates into recognising there are always alternative ways of dealing with people and/or situations.

An Employment Tribunal has determined that the protected characteristic ‘gender reassignment’ under the Equality Act 2010 includes protection for non-binary individuals.

Peter Stanway, our BackupHR™ legal expert comments:

Protection under the Equality Act has looked at the concept of gender identity through a binary, medical lens, requiring an individual to have gone through, or be proposing to go through, a formal gender reassignment process. For several years, this view has been challenged as many people either do not identify traditionally, i.e. male or female, or are not transitioning, or going through a gender res-assignment process. A recent judgment moves away from the traditional approach, determining that protection can extend to those who identify as non-binary.

An Employment Judge in Birmingham has given judgment in the case of Taylor v Jaguar Land Rover (JLR), who was “subjected to insults and abusive jokes at work”, and had rest room access restricted. She received little support from the business.

Ms Taylor worked as an engineer at JLR for almost 20 years. She previously presented as male but in 2017, began identifying as gender fluid/non-binary and from which time, she usually dressed in women’s clothing.

She brought claims of harassment, direct discrimination and victimisation on the ground of gender reassignment. JLR argued Ms Taylor, did not fall within the definition of gender reassignment under s.7 of the Equality Act 2010. The Judge did not agree, and furthermore, considered it appropriate to award aggravated damages, because of the appalling way she was treated and the insensitive approach taken by JLR in defending the proceedings.

The implication of this judgment is that other complex gender identities may also fall within the definition of gender reassignment under s.7 of the 2010 Act, where individuals propose to undergo a process of moving their gender identity away from their birth gender.

It is not legally binding, so the legal position remains unclear; employers should, however, be alert to this judgment and begin to take steps to review their workplace, including their practices and procedures, to ensure that they would not be at risk of a similar discrimination claim. A main consideration should be the training that their employees receive on the anti-discrimination ethos of the organisation, which should contain an instruction not to harass colleagues. The language of gender diversity may present unfamiliar territory for many; however, it is of vital importance that employers continue to educate themselves, and their staff, to ensure they promote an understanding workplace, in line with modern standards around equality and inclusion.

Other Actions

  • Dress codes can be worded neutrally, rather than having separate codes for men and women. This may help avoid a host of issues, including not just the exclusion of non-binary employees, but other potential discrimination claims.
  • Ensure that employee records include diverse gender options (not just ‘male’ or ‘female’).
  • Where an employee has advised that they identify as a different gender, it is important to take the time to understand as much as you can about the employee’s situation. Confusion can arise from misunderstanding about terminology and consequent misuse of terms.
  • Arrange a meeting with the individual, to start discussions around their identity. Each person will have a different experience, so each situation should be addressed individually.  Seek to learn more about their background, and it will provide a platform to explore issues, such as the pronouns or set of pronouns which others should use in relation to them.
  • Ask the individual how and what they feel comfortable talking to their work colleagues about regarding their transition.  A better understanding early on will help others to be more supportive, and hopefully may help to reduce curious but potentially intrusive, and hence, unwanted questions or comments.  
  • Assess any practical or logistical barriers, e.g. the need for gender-neutral toilets/ facilities. This can be a sensitive/controversial issue, so should be handled sensitively, considering whether employee consultation is appropriate.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

Employment Tribunals have reacted to the Covid pandemic, by making various changes to streamline the conduct of disputes and improve capacity within the system. Employment Tribunals, like most of the court system, have been struggling with backlogs. The most important changes are detailed below.

Peter Stanway, our BackupHR™ legal expert comments:

From 1st December 2020, ACAS early conciliation timescales are being extended, allowing more time to settle disputes before a Tribunal claim is started. Currently, the standard ACAS early conciliation period is four weeks, with an extension of two weeks available in certain circumstances. The standard period will be increased to six weeks in all cases, and there will no ability to extend this period further. The change allows for the fact that ACAS is experiencing backlogs.  We have experience of employers who are not being contacted until the third or fourth week of the early conciliation period. The removal of the ability to extend the conciliation period by 14 days means parties will be required to tightly manage negotiations within the available time, to ensure that the opportunity to settle a dispute without a Tribunal claim is not lost.

Less visibly, unless you end up appearing at Tribunal, other judges will be able to deal with Employment Tribunal cases to take some of the pressure of employment judges. First tier Tribunal and Upper Tribunal Judges, High Court and Deputy High Court Judges and Circuit Judges may be called upon to sit as employment judges in order to widen the judicial pool, and provide greater capacity to hear cases.

Even more invisibly, pressure will be eased from employment judges by diverting some of their administrative tasks to new “legal officers”, who will be allowed to carry out some tasks usually performed by employment judges. This was proposed some years ago and is now being brought into force. These tasks include the determination of the following: whether a claim form is defective; granting extensions of time to respond to a claim, or comply with a case management order; and granting postponements in uncontroversial cases. Parties will be able to apply for a legal officer’s decision to be reconsidered by an employment judge. Legal officers will not decide substantive matters and, despite the title, do not need to be legally qualified!

The rules are changing to allow multiple Claimants and Respondents to use the same forms where reasonable, to avoid multiple certificates and time limits in what is essentially the same dispute. This will be permitted where the claims give rise to common or related issues of fact or law, or if it is otherwise reasonable to do so.

Cases may now be listed before the deadline for response has passed, provided that the date of the hearing is not sooner than 14 days after the response deadline.

There will be more flexibility over the conduct of virtual hearings: the inspection of witness statements by the public will not necessarily have to be during the hearing itself, and the public will only hear what the Tribunal hears and see witnesses “as far as practicable”. It is hoped these changes will allow more virtual hearings to happen.

Cases which are dismissed upon withdrawal will no longer be included on the searchable online public register. This may well encourage parties to settle disputes by avoiding the dispute ending up in the public domain. With a reported backlog of 45,000 claims, and a further spike in claims expected, it remains to be seen whether these reforms will be enough to preserve meaningful access to justice.

Actions

  • Avoid potential Tribunal claims by educating your Managers to follow robust employment policies and procedures, and the law.
  • Always get professional advice before acting, especially when dismissing workers.
  • Treat workers with respect and dignity, so they are less likely to react emotionally by starting a claim.
  • Seek to settle claims using ACAS at the Early Conciliation stage.

The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.

This is a subject that is causing confusion and lots of unnecessary reports to the HSE.

We have written about this before, not least during the height of the first lockdown. At that stage, people were considering how to keep open businesses and were concerned about the reporting requirements and the consequences.

Many employers are still unclear whether a Coronavirus infection in the workplace needs to be reported to HSE. The simple answer is that, in almost all cases, it does not. Which is hardly surprising because with the levels of infection so far, the HSE would have been unable to cope.

So when should it be reported?

Much of the reporting and guidance around the need to report under RIDDOR has been technical and not very clear.

But, the HSE published clear guidance in the summer which they have recently updated. This states that they do not want to hear from everybody who has had Coronavirus in the workplace. They are only interested in infections resulting from “occupational exposure” to the virus.

What does this mean in practice for the average employer?

Most employers do not have “occupational exposure” to Coronavirus, even though their employees might be exposed to it at home, at work and elsewhere.

Occupational exposure is very tightly defined. It applies to those whose job is to work with the virus, say in research or testing, or with those who are known to be infected, like in a specialist ICU ward for Coronavirus patients.

Just working with the general public, or pupils in a school, or other work colleagues who might be infected, then you are not working in an occupation associated with Coronavirus. Therefore, the infection cannot be “occupational exposure”.

This means that for most organisations, there is no need to report a Coronavirus infection in the workplace to the HSE.

You would, however, need to report more than one occurrence of Coronavirus, or suspected occurrence, in the workplace within 14 days to the local health protection team. They will then give guidance if any further action needs to be taken, depending on the severity of the outbreak.

If you are in any doubt as to whether you are working in an occupation connected to Coronavirus, then in reality you are probably not.

Researchers into the vaccine, nurses working in ICUs for Coronavirus patients understand the environment in which they are working. And many in the National Health Service have different reporting requirements in any case.

Finally, it is worth stating that people involved with implementing the eagerly awaited Coronavirus inoculations are not actually being exposed to the live virus themselves, so providing the right safe systems of work are in place, should be at no greater occupational exposure than many other health care job roles.

If you still feel you are working with Coronavirus in an occupational sense and you need to report it, then the HSE has published guidance here.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

There are links below to a couple of documents we think clients will find useful at the moment; the second of which we have produced to help clients assess vulnerable employees’ return to the workplace.

But first, a very useful poster or information card has been published by IOSH this week, reminding employers about how to encourage and maintain a positive health and safety culture during the pandemic.

It is all about clear communications, leading by example, listening, being open, clear and consistent. It is also about applying a risk-based approach to COVID ways of working safely, additional to standard working practices. Its seven-point plan reminds employers about both the importance of health and safety and implementing it properly in the workplace.

And, not forgetting, as many of the leading industry bodies constantly remind us, about your employees’ well-being and mental health. These are tough and talent challenging times so remaining safe, and acting appropriately and responsibly is crucial as it shows good leadership, which in turn creates a positive health & safety culture.

The publication can be found here.

We have also been asked a number of times how employers can health risk assess whether employees, who might be vulnerable, can remain or return to the workplace.

Our advice continues to be that the employer and employee need to talk openly about health issues and concerns, making joint decisions where practicable based on that consultation. To help formalise the process, we have put together a very simple COVID health risk questionnaire.  The questionnaire may be easy, but there are three potential pitfalls:

  1. You may not know about an employee’s health conditions, so you have to talk to them in a way that gets them to be honest, especially as talking about people’s weight is a sensitive subject, and often people will not recognise that they fall into the definition of being obese.
  2. You need to consider and discuss how people who fall into the medium or high risk categories can be protected by making additional reasonable adjustments, such as changing their duties, workplace, PPE provision, screening etc.
  3. Do not ignore an employee’s concern if they appear to be low risk, but have other serious underlying health conditions not identified on the questionnaire. Be sensitive to people’s health and safety worries, and above all else, remember that if it is effective for people to work from home then let them continue to do so.

When risk assessing for COVID-19, aim to reach a balanced and proportionate response which demonstrates that your priorities are keeping employees safe whilst needing to maintain your operations.

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.

Employers are facing pressures from all sides. They are currently having to balance:

  • The Government urging us to return to work
  • Rising levels of coronavirus infection
  • Employees keen to return to the workplace
  • Employees keen to remain working from home
  • Commercial pressure from stakeholders
  • Meeting customers’ needs and expectations

All of these are pulling in different directions, but somehow every employer has to establish how work can continue to be done safely. Especially in the face of seemingly random outbreaks and local and regional lockdowns.

An excellent article and guide from the Institute of Occupational Safety and Health (IOSH) was recently published. It supplements much of the advice that is already being given, but laying it out in clear language, with a very practical, balanced approach to safety.

Responding to Resurgences and Local Lockdowns

It points out that the virus exploits weaknesses in controls and safeguards, as well as human behaviours at home and at work. And, just as it seems to subside, people start to relax and it surges again. Restrictions are eased and then imposed again without much warning.

So, it is essential to remain vigilant, agile and disciplined in how you manage your own workplace.

Using the HSE’s recommended health & safety management system of plan–do–check–act approach, employers need to control risk with strong leadership, worker involvement and sound health and safety advice – to ensure safe people, workplace, systems and equipment.

Many employers rushed into control measures, and they probably got it mostly right, but it is worthwhile to consult employees; not just because it is a legal obligation, but also because it is good practice and more likely to result in commitment to adherence, if it is something they have been involved in.

It is a useful reminder of how we can continue to operate safely in an uncertain world, as this virus seems set to be with us for some time.

The Peltzman Effect

We have also had calls from clients frustrated, as they feel that they have put in all sorts of (often expensive) measures to keep people safe, yet some are not following basic instructions on, e.g. social distancing, so in effect are taking risks.

Risk assessments invariably break down when it comes to human behaviour because we base our risk assessments on a logical process which we then expect less than completely logical people to comply with.

Another IOSH discussion has been over why people take more risks after risk assessments are completed and communicated out, which sounds illogical but can often be true.  The answer is not to stop doing risk assessments, but to understand why some people react against it.

The Peltzman Effect is a theory which states that people are more likely to engage in risky behaviour when security measures have been mandated. Sam Peltzman is an economist, he noted that the more safety was mandated in cars, e.g. mandatory seat belts, the more unsafe behaviours people performed in cars.

In other words, the safer people feel, the more risk that they may decide to take. This could explain why the ‘R’ rate is once again on the increase, in spite of the fact that the Government has kept imposing various restrictions, most recently the rule of six.

The key word is ‘mandated’. People then see safety as something that is being done to them, and they have little or no control over it. The more they feel this, the more likely it is that they could be tempted to ignore the mandated rule(s).

Plan-do-check

So, how do employers overcome this?  The key, as always, is about strong two-way communication so that safety is not seen as being done ‘to’ people, but ‘with’ people.

So, when considering a plan-do-check-act approach, make sure that you talk to your people. Take on board their opinions so that, the risk assessment and safe working systems that you ask people to follow they will feel involved with. And, will be more likely to engage with and undertake them in practice.

 

 

Our Consultants would be pleased to advise you on any element of the issues arising from this newsletter.