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.

We have designed these courses 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.

Our courses are highly participative, practical in content, and intended to challenge our delegates into recognising there are always alternative ways of dealing with employee issues.

Discipline & Dismissal – “When Can and Should you Dismiss”

Norwich – 19th October 2021

Many organisations have noticed a significant skills shortage, so it is not so easy to recruit replacement staff as it was.  This means it is important to get the best out of your existing staff.  Many employers only use the disciplinary procedure when they are actively looking to remove staff rather than recognising that it is a tried and tested formal performance management system, which if done correctly, can correct behaviours and reduce the need to dismiss employees.

Managers are often very reluctant to use the disciplinary procedure because they have not been trained in how the procedure can work for them.   Instead, Managers avoid using the disciplinary procedure because they are aware that dismissing staff can have serious implications if done badly.

We will also discuss the importance of dealing effectively with new starters and those with less than two years’ service in the event they are not meeting expectations, and how they can be departed safely using a shorter but fair process.

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.

Performance Management – “Acknowledging Good and Dealing with Poor”

Newmarket – 10th November 2021 & Norwich – 23rd February 2022

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 Myths – “Surprising Facts about What you Can & Can’t Do”

Norwich – 30th November 2021 & Newmarket – 22nd March 2022

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.

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.

The Government, the HSE and the media have reminded us that worker safety is of paramount importance to employers.

Four months after the main lockdown the HSE has finally published proper guidance on Covid 19 risk assessments. Better late than never I suppose. However, it is after a lot of sector specific Government safe working guidance has already been circulated together with what Trade Bodies and Professional Associations have provided for their members.  Therefore, I’m not sure that the HSE’s procrastination is an adequate defence if you get your own risk assessment wrong, or fail to produce one in time.

Nevertheless, there are a number of things highlighted in this guide, which can be accessed at http://www.hse.gov.uk/coronavirus/assets/docs/risk-assessment.pdf that are worth mentioning.

Hand washing. Something that science confirms is hugely important and should be enforced at every opportunity in the workplace.

Consulting the workforce. Many employers before the pandemic may have paid lip service to this requirement. But with their workers probably even more concerned than their employers, consultation has become important, and employees are taking it seriously.

Remote working. Something we have all become used to, and may well become a permanent part of the working landscape. Working from home is still necessary and using online meetings is seen as an effective way of holding meetings, avoiding too many people in the same place.

Social distancing. Whether it is a full 2 metres, or something less, this is a term that did not even exist at the start of this year. Now it is a cornerstone of every workplace risk assessment.

Ventilation. Probably one of the most important measures after social distancing. The science is reinforcing how important this can be. And how at times it may conflict with things like fire safety. Should you open or close fire doors?

Musculoskeletal disorders. Employers need to be aware of the increasing risk of musculoskeletal disorders arising from  lengthy DSE use at home. The HSE maintains that ‘there is no increased risk for people working at home temporarily’ but this pandemic is now seriously questioning our attitude towards what ‘temporarily’ really means

Well-being and mental health. Without regular social interaction, working remotely can become lonely, with unregulated working hours, lack of communication on what else is going on within the organisation, this can all create increasing anxiety which is detrimental to health. Equally, employees working in an environment where there is a heightened risk of infection is equally damaging.

Protecting the vulnerable. This has been a keystone of most employer’s, and indeed the Government’s, policy since the start. Some employees with medical conditions, from different ethnic backgrounds and different age groups are more or less vulnerable to infection. Recognising and protecting the most vulnerable is essential, as is individual consultations with those who feel they need to be protected.

Outside work. Almost for the first time, employers have been responsible for at least considering how their employees travel to work. Employees also are beginning to realise they have a responsibility to protect their colleagues by behaving responsibly outside the workplace.

The guidance is light on things like PPE, which, as we have said before, is very much the last line of defence in terms of mitigation if proper social distancing cannot be maintained. Indeed, Government advice still stresses very strongly that proper, medical grade PPE should not be used except in appropriate environments, so as not to deprive the appropriate services of essential supplies.

Facemasks are not recommended in general, though employers are urged to support workers who wish to wear them on a voluntary basis. And they are also urged to instruct them on their proper, safe usage.

We would recommend that all employers check their own COID-19 risk assessments against all of the factors that the HSE have stated should be included just to make sure that you have covered off all of the aspects the HSE identifies need to be considered.

In another publication by the HSE, they have reported that there have been over 8000 reports of occupational infection of Covid 19, resulting in 119 work related deaths.

While these at first seem shocking figures, 75% of these have happened in the health care and care home sectors. In other words, with those who work directly, and at close quarters, with those who may be affected.

The regulating bodies of the HSE and Local Authority Environmental Health Officers, EHO, are undertaking targeted COVID compliance spot checks after a spate of localised outbreaks making sure that employers are aware of the Safer Workplace guidance and advising where necessary on improvements needed to ensure the workplace is COVID secure.

Some of the most common issues that HSE and local authority inspectors are finding include: –

  • failing to provide arrangements for monitoring, supervising and maintaining social distancing
  • failing to introduce an adequate cleaning regime – particularly at busy times of the day
  • failing to provide access to welfare facilities to allow employees to frequently wash their hands with warm water and soap

The HSE It warns that where some employers are not managing the risk, inspectors will provide specific advice, issue enforcement notices, stop certain work practices until they are made safe and, where businesses fail to comply, prosecute.

 

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

As the Government issues detailed guidance to schools, restaurants and other organisations that are reopening, our clients have presented us with a number of issues.

One in particular seems to recur. Who do organisations have a primary duty to protect under health and safety law, and how they go about achieving that? Naturally, many of them are interpreting their primary responsibilities as being to their staff and those that they provide a service to, be that customers, guests or pupils.

As a consequence, third party workers such as contractors, delivery drivers and others are having special conditions imposed upon them, particularly that they are not able to use washing and toilet facilities on site, or access to drinking water.

We are having to point out that, while they may feel their primary responsibility is to “their own”, and people paying them for their good/services, they have to look after and provide facilities for all visitors and workers to their sites.

Here is some wording from recent Government guidance (and the crucial words here are “and others”):

“All employers are required by law to protect their employees, and others, from harm. Under the Management of Health and Safety at Work Regulations 1999, the minimum employers must do is:

  • identify what could cause injury or illness in the organisation (hazards)
  • decide how likely it is that someone could be harmed and how seriously (the risk)
  • take action to eliminate the hazard, or if this isn’t possible, control the risk”

Delivery drivers have been a particular problem for some organisations, especially where they take in an enormous number of goods. The constant to-ing and fro-ing of drivers means that staff are, not unnaturally, concerned that this increases the risk of coronavirus transmission. There are specific regulations which require organisations to provide facilities for delivery drivers, and current difficulties do not give an excuse to treat them unfairly/illegally.

So, in these circumstances, we have suggested that clients either:

  • Designate one facility for the sole use of drivers, subcontractors and other visitors
  • Temporarily install a facility solely for their use (such as a Portaloo), although these must include washbasins
  • Or have a proper social distancing management policy in place for those who wish to use the facilities on site

These facilities must also be thoroughly and regularly cleaned.

Clients organisations and employers must not forget that their health and safety responsibilities extend beyond their organisation at times, and have to make reasonable adjustments to ensure that visitors and other workers to their site have access to proper facilities.

What about visits to other sites?

The more difficult problem is for organisations whose employees visit other sites, such as schools, factories and other workplaces. Their staff often find themselves met with a brick wall of resistance, and a refusal to allow access to some basic welfare facilities.

This is a management issue, and it is essential that organisations get acceptance from the sites they visit that there is fair access.

In circumstances where this is being refused, your own staff need to have clear directions on how to proceed, and how to escalate the matter. Your management needs to be very clear on how to communicate with these locations to solve the problem.

The law is covered by the Workplace (Health, Safety and Welfare) Regulations 1992, and is best explained in the accompanying Approved Code of Practice which requires the provision of suitable and sufficient welfare, and specifically sanitary facilities, at readily accessible places. The Regs go on to provide for the number of cubicles and washbasins depending on the number of people at work. The use of the word ‘people’ is deliberate as it covers all contractors, suppliers, agency staff as well as customers, end users and visitors.

There is also an Approved Document G Sanitation, Hot Water Safety and Water Efficiency. Further guidance is provided in British Standard 6465, which suggests that “staff in permanent stationary workplaces in buildings should not have to walk more than 100 metres, or travel up or down more than one floor to use the sanitary facilities”.

The Workplace Regulations require that everyone using the workplace must have their needs considered as part of the Workplace risk assessment.  These needs now extend to forming part of your COVID-19 Workplace risk assessment as well.

We are all learning as we move through this Covid 19 pandemic, that the health, safety and welfare of all employees in all situations is paramount, but others are affected too and permitting their access to the appropriate facilities and protections is also essential.

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

With some non-essential retailers already returning to work, including places like car dealerships, it seems we are poised for another spate of re-openings over the coming weeks. The High Street will be opening up much more on 15th June, as many shops are able to reopen their doors, and there are strong indications that by 4th July pubs and restaurants may be able to open in some way.

There are a couple of very useful, free to download guides produced by the BSI and IOSH. For those of you who were not familiar with their work, IOSH is really the Institute for Health and Safety Consultants, but because that didn’t sound quite right, they have named it the Institute of Occupational Safety and Health.

The risk assessment guide from IOSH includes this particularly helpful graphic, and some very good advice on how to apply it. We have already written a couple of articles on creating a Covid Secure workplace, and Managing the Return to Work, this article in particular is a useful addition to it.

Understanding how to carry out risk assessments is crucial if you are to manage this very difficult disease in your workplace. Doing this correctly will protect both your workers and yourself. Identifying each risk and area of risk, and mitigating it properly through a staged response is vital.

In the BSI document, called Safe Working During the Covid 19 Pandemic, there are some very useful definitions and they share some of the best practices. It is keen to point out that it is not a guide to risk assessments, but it lays out some very good principles.

As you would expect from an institution that is extremely good at specifying standards and defining them very tightly, they are very careful about the words they use, and how they should be applied.

So, for instance, early on in the document they tell the reader that the following verbal forms are used in the following way:

  • “Should” indicates a recommendation
  • “May” indicates a permission
  • “Can” indicates a possibility or a capability.

Why is this important? Because such an approach much more tightly defines what until now look fairly loosely worded paragraphs. A bit like the legal definitions in a contract.

Later on, in their introduction, they say that they have used what the HSE recommend when developing a health and safety management system, a Plan – Do – Check – Act approach. Again, they define this quite closely:

  • Plan what needs to be done for the organisation to work safely
  • Do what the organisation has planned to do
  • Check to see how well it is working
  • Act to fix problems and look for ways to make what the organisation is doing even more effective.

Not a bad way of proceeding in the current climate to make sure that you protect your workforce, protect the organisation, and to demonstrate that you are taking safety and the risk of Covid 19 infection seriously.

Other areas that we particularly liked were clear definitions of the Clinically Vulnerable and Clinically Extremely Vulnerable in Section 3, Terms and Definitions.

The guide considers external issues that affect your workforce, such as methods of transport to work, which are not normally part of an employers’ concerns, but because of the pandemic are now very definitely fixed in their sights. It outlines very effectively how owners, Managers and other decision-makers should demonstrate leadership. And how they can encourage worker participation through communication, and opening ways for those with concerns and whistle-blowers to talk to Senior Management.

Categorise Work

For any organisations that are considering whether workers should return to the workplace, it suggests that organisations should divide work activities into three categories: 

  • can be done from home;
  • cannot be done from home, but can comply with social distancing guidelines in the workplace, if practical adjustments are made;
  • cannot be done from home and cannot comply with social distancing guidelines in the workplace;

In the latter category, employers must ask whether such an activity is essential for the operation of the organisation – it may only take place if additional controls (often PPE as the last resort) are implemented to mitigate the risks to health, safety and wellbeing at work.

Again, emphasising the principle of all health and safety legislation, it points out that it is not possible to eliminate the risks to Covid 19 entirely. But planning should aim to ensure the risk to workers is reduced to the “lowest reasonably practicable level”.

And, employers should make note of this, and communicate this clearly to their employees. No activity is 100% safe. Working from home, for instance, might be more dangerous for the workforce in the long run, as remaining static at home is not good for health. It certainly increases the risk of certain types of illness through physical inactivity.

But the employer’s job is to recognise control and mitigate the risk, making sure that their workers are protected as best they can.

Finally, and it is something that is often overlooked when planning, what happens in emergencies other than Covid 19? For instance, if there is a fire, clearly, especially in the case of panic, social distancing cannot be guaranteed. However, the need to evacuate the building quickly will almost certainly outweigh the risk from coronavirus.

Similarly, you may have to practice fire drills with a smaller workforce, and indeed make sure you plan carefully so that there is sufficient first-aid cover in the organisation, and that first aiders are trained in what needs to be done in the current circumstances.

RIDDOR

Both guides are excellent; however, we do take issue with the BSI in terms of one small but highly significant point. In section 10, they talk about the employer’s duty to report coronavirus under RIDDOR.

Coronavirus was legislated in March to be a notifiable disease, but the HSE has made it extremely clear that serious incidents need reporting where coronavirus is part of the occupation, rather than incidental to it.

What does that mean? The HSE website gives very clear guidance on the examples, of where an incident is reportable and where it is not. So, infections in the workforce are not reportable (though a widespread COVID-19 infection within a working team for instance may be classed as a RIDDOR dangerous occurrence and should also be reported to your local authority, who can give proper support and direction). But, where a worker works directly with coronavirus, for instance in a laboratory, the dropping of a vial of coronavirus and its escape into the environment is reportable.

A policeman contracting coronavirus by contact with the general public is not. There is also a very high level of proof required to identify that the coronavirus has been contracted at work, and not anywhere else.

This is not the impression given by the BSI, and we disagree with their guidance in this part of the guide.

Otherwise, both documents are excellent documents and well worth reading.  The links to these documents are as follows:-

IOSH:  Returning safely – Covid-19 Risk Assessment Guidance

BSI:    COVID-19 | Guidelines

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