What are the key health and safety issues of bringing employees back to work?
The latest guidance from the Department of Business, Energy and Industrial Strategy – Working safely during COVID-19 in offices and contact centres – which was prepared in consultation with Public Health England, HSE, trade bodies, unions and businesses, is a blueprint for how employees can return to work safely. The guidance focuses on five key areas – working from home, risk assessments and who needs to be consulted, maintaining social distancing, what to do if that isn’t possible, and enhanced cleaning. Businesses that adhere to the guidance should be compliant with current health and safety law.
How much must a workplace be de-risked?
There is no legal duty to provide a totally risk-free workplace and Covid-19 legislation is designed to be temporary. So it doesn’t change existing workplace safety laws; instead, it adapts the existing law on risk assessments.
What risk assessments need to be undertaken?
All risk assessments should be reviewed and recorded, but there is no legal requirement to publish them. It’s prudent to consider the reputational risk of publishing.
High-hazard sectors (like chemical, construction or energy) already have high risk management levels and may find little needs to change – other than social distancing, some PPE alterations and enhanced cleaning. The greater impact will be on traditionally low-hazard workplaces, like retail or offices. These businesses should manage restrictions on circulation and may need to enforce social distancing, including removing desks. Flexible working arrangements and staggered hours may also become important in managing social distancing.
It should be emphasised that the burden is not just on employers. All employees also have a duty to keep themselves and colleagues safe.
Employers need to consult employees when carrying out risk assessments, but overall responsibility for signing off on any practices and procedures remains with the employer.
What about travel to and from work?
There has never been a duty on employers to risk-assess “to-work travel” but this is likely to be an issue, especially in urban areas. Employers would be wise to demonstrate flexibility and understanding on this issue.
Who needs to be consulted with as part of the risk-assessment process?
It is vital employees feel listened to, so an effective consultation process is important. Where there is a recognised trade union, their safety representatives have a right to be involved. Employers will want to ensure that unions feel sufficiently consulted; some have been very vocal.
Where there is no recognised union, there remains a separate requirement to consult with the workforce directly or via elected representatives, who can be chosen through a simple ballot process. Those elected are protected from any detriment suffered as part of taking on such duties. Such employees should be offered training on legal guidelines.
Should employers decide to publish risk assessments, these should refer to the consultation process and that it remains active.
What can employers do to prepare for employees to return to work?
Employers need to consider how they engage with employees on practical aspects like childcare, commuting and personal health. It is worth collecting information about obstacles to returning, or canvassing opinions, either through confidential surveys directly with employees and/or through line managers.
Persuading employees to return will be easiest if employers show some flexibility. Workers will need time to plan, so it would be prudent to provide plenty of notice. For larger employers, it may be a good idea to circulate a frequently asked questions document.
Should I discuss plans with the workforce about return to work arrangements?
Employers and employees should talk as early as possible about plans, to allow sufficient time for mechanisms to be put in place.
Some issues to consider include: when staff might return, how they will travel, and how health and safety is reviewed and managed. This might include sharing the latest workplace risk assessment.
It will also be important to discuss planned adjustments, for example, additional hand-washing facilities, staggering work times to avoid overcrowding, or floor markings to enforce social distancing. If there is to be a phased return, this should also be discussed, as should arrangements for working from home.
Can I apply a blanket approach and treat all employees the same?
Different groups have different requirements. This is especially important around those classed as vulnerable. Many of the complexities here have been deferred thanks to the furlough scheme (see What does it mean to be furloughed?, EGi, 6 April) and employers should note the government guidelines in relation to that.
What are the vulnerable groups and what are the potential different approaches?
There are three separate groups: (i) the clinically extremely vulnerable; (ii) the clinically vulnerable; and (iii) those living with clinically extremely vulnerable individuals. These classifications are quite broad and can be found in the government guidance.
The clinically extremely vulnerable should work from home where possible with duties adjusted. If they cannot, they are entitled to statutory sick pay, or possibly company sick pay if they have a medical condition.
The clinically vulnerable should stay at home as much as possible, although they can go to work if they cannot work from home – and employers must take all reasonable steps to ensure their workplace is safe. They are probably not entitled to sick pay, but if their workplaces are not safe for them, they may be found to have suffered an unlawful detriment. The sick pay option may therefore remain the most practical.
Those living with clinically extremely vulnerable people are not entitled to sick pay. But again, rather than risk claims of unlawful detriment, companies may feel it is better to keep them on sick pay.
Pregnant employees are categorised clinically vulnerable. Adjustments to their workplace should be made (as usual) or it may be best to have them stay at home, paid, until maternity pay becomes due.
When making decisions, employers may want to remember that in addition to the legal issues, there may be reputational and PR risks.
What about employees who are fit and well but still don’t want to come back into the workplace?
Employers should tread with caution. Engagement and communication will be key, not least from an employee relations perspective.
It may be prudent for employers to set up a confidential hotline (not in the context of whistleblowing) in order to allow employees to raise concerns without running the risk of such concerns being categorised as “whistleblowing” (albeit such concerns may technically fall under legislation).
Ultimately, if an employee refused to return to work following completion of all necessary risk assessments and adjustments, this may give rise to grounds for disciplinary action or withholding pay. However, employers should exercise caution owing to the risk of detriment claims, and where unionised, potential industrial action.
Richard Yeomans is a partner in the employment practice at Addleshaw Goddard
