With the UK currently on lockdown, multiple businesses have had to close their doors, with some ‘non-essential’ businesses being asked to close indefinitely. In line with Government advice, the manufacturing and production industry contains a number of ‘essential businesses’, including food manufacturing and the production of protective equipment for front line workers. Other businesses and services have been allowed to continue with employees expected to attend their place of work when they cannot work from home. Staying open during this pandemic brings with it a number of challenges and poses some significant questions. How will those businesses that need employees to attend their place of work such as those involved in manufacturing and food production ensure the health, safety and welfare of employees and comply with health and safety legislation in the face of a pandemic? How will the Health and Safety Executive respond to reports of accidents and unsafe practices at work or a failure to properly implement the Governments social distancing policy?
A recent statement from the Health and Safety Executive (HSE) confirmed that in line with its duties under the Act, it would continue its ‘regulatory oversight of how duty holders are meeting their responsibilities in the context of the current public health risk.’ The HSE has also confirmed it will suspend targeted inspection activity of high-risk industries that are not part of the major hazard sectors, including construction and manufacturing. Duty holders must continue to ensure so far as reasonably practicable the health safety and welfare of employees but the pandemic presents clear challenges in certain industries. With  tens of thousands of confirmed cases in the UK and many more self-isolating, Coronavirus has had an impact on the number of fit and well staff able to continue to work often requiring employers to find existing unskilled and new staff to take their place on the production line. The President of the Country Land and Business Association has already recognised this issue, estimating that farms are likely to face ‘a shortage of 80,000 workers’ and has proposed that ‘workers from other sectors could be quickly retrained to do agricultural work. Retraining could also encompass current workers in different roles, such as managers / supervisors, retraining as agricultural or factory workers. Employers should note that their regulatory requirements in relation to training staff will not be relaxed despite increased need. Employers looking to retrain could look to provide the training online where appropriate, and implement more targeted training, to include key topics such as health and safety, hygiene, PPE, safe operation of machinery, and safe working practices.
As a starting point, employers should be re visiting risk assessments and modifying their existing procedures and operations where necessary to adequately address the risks posed by coronavirus. Employers need to ensure that all workers asked to undertake unfamiliar duties are properly trained, supervised and operations continue to be monitored to ensure new and existing procedures are followed. Employees must be kept informed with the latest and most relevant information concerning their health and welfare at work including social distancing. Employees should be asked to report concerns over their health, particularly where exhibiting symptoms of coronavirus. This may present challenges where such a requirement is not contained within contracts of employment but it is essential employers are aware of potential spread within the organisation.
Social distancing at work is essential. Most employers are going to great lengths to ensure social distancing wherever possible and providing PPE where necessary. There have already been calls for increased social distancing guidance, and large companies such as Amazon are beginning to implement social distancing policies at work, where employees could face serious consequences if breached. In line with government guidance, where manufacturing and production work is to continue, employers should ‘take all the mitigating actions possible to reduce the risk of transmission between staff’.This includes requesting that ‘staff should work side by side or facing away from each other rather than face-to-face if possible, increasing the frequency of cleaning procedures, assigning staff to the same shift teams to limit social interaction,. considering arrangements such as staggered break times so that staff can continue to practice social distancing when taking breaks, and ensuring staff stay 2 metres apart as much as possible.’ Many businesses have been on a steep learning curve but most stepping up to the challenges. What is the current practice of the HSE in the event of an accident at work, a report of unsafe practices or a report of a notifiable disease including Covid -19? Typically, the HSE would visit a work site to investigate a serious accident or reports of continuing unsafe practices. This is typically done with a physical visit. However, in the wake of COVID-19, the HSE has confirmed that they will do as much ‘regulatory intervention work as they can remotely’. Where necessary, the HSE will still attend some locations. This is likely to have serious implications on HSE Inspectors and the way they conduct inspections and enforce health and safety regulations.
There has been no change to Inspectors powers to issue Improvement and prohibition notices. If inspectors are not routinely making visits to premises, how are they able to properly investigate and ensure compliance? This is likely to be carried out through photographs, documents and videos taken by those being investigated. Interviews of witnesses and other employees will be conducted over the telephone .In the wake of COVID-19, will the limited nature of the inspection make appeals against improvement and prohibition notices more likely? The same issue may arise over Fee for Intervention charges with duty holders challenging the basis upon which an Inspector has reached an opinion there has been a material breach.
It is clear the HSE will continue to try and uphold their standards of investigation during this period, even where such investigations are to be done remotely. However, like all organisations, the HSE currently have reduced capabilities and are following their own guidance, protecting their employees’ welfare by scaling back operations to a safe and acceptable level. While there will be continued regulatory oversight, the onus remains on employers to ensure a safe working environment for their employee’s..
While it is clear that the HSE will continue, even in a more limited capacity, to enforce regulatory compliance, some flexibility and proportionality will be required, especially in light of staff shortages and increased for some goods and services. This does not remove or limit the duty to take all reasonably practicable steps to protect the health, safety and welfare of their employees and to comply with health and safety regulations. This is presenting huge challenges to employers in the current climate. Time will tell how the HSE approaches serious health and safety breaches and to what extent these lead to prosecutions in the futures. How will the HSE approach the question of public interest as part of the charging decision, particularly where essential industries such as food manufactures are under pressure to maintain levels of production in the wake of the impact of the pandemic? Some interesting arguments lie ahead when restrictions are lifted and normal service is resumed.
Written by Arthur Caplin at BLM