As we enter our fifth week of lockdown, we have seen an increasing amount of regulatory guidance being issued in relation to legal requirements for those industries continuing to operate. There certainly seems to be a degree of settlement since our last update but whilst some clarity has come from the guidance, concerns remain about the practical application and enforceability of this.
The following areas will be key considerations for customers from a health and safety regulatory perspective:
- Police interviews under caution continue under the COVID-19 protocol recently put in place. However, there are reports of the protocol not being adhered to within police stations and practical issues in maintaining social distancing measures and availability of suitable and sufficient PPE. Remote attendance remains an option, but the attendance at and timing of interviews needs careful consideration to ensure the position of the suspect is protected, both legally and medically.
- On a practical level, criminal courts continue to prioritise urgent cases and are assessing individual hearings on a case by case basis. Virtual online hearings remain the preferred forum but the short timescales the courts are working to is resulting in some hearings being adjourned at the last minute, often late in the afternoon before the hearing is due to take place. Close contact with all clients who have a confirmed court date needs to be maintained, and certainly those individuals facing sentencing hearings, to ensure all eventualities are considered and planned for.
- Guidance issued by the Crown Prosecution Service states that serious cases should be prioritised to manage the impact of the COVID-19 pandemic and all options should be explored for less serious offences. Prosecutors should be expected to carefully consider the pressures COVID-19 is placing on the criminal justice system when charging decisions are made, and we anticipate this may be a factor for regulators when considering breaches of health and safety legislation and the appropriate enforcement action.
- In alignment with this, the Health and Safety Executive ( HSE) has confirmed it will adopt a pragmatic and proportionate approach towards enforcement action for non-compliance with statutory requirements which are directly attributable to the COVID-19 outbreak. What this means in practice remains to be seen, but the message is clear from the HSE that the health and safety of workers remains paramount.
- We know that the HSE will continue to investigate work related deaths and the most serious major incidents and will take action to secure compliance with the law. Investigations will be conducted remotely and using technology wherever possible, but if attendance is necessary, social distancing guidelines will be observed.
- The HSE has now produced a series of specific guidelines in relation to a range of topics including social distancing and protecting workers during the COVID-19 pandemic, reporting coronavirus incidents under RIDDOR and first aid cover and qualifications. Further guidelines are expected across more specific sectors such as the manufacturing sector, but in the meantime, organisations should be encouraged to ensure they are aware of and remain compliant with the most up to date guidance, working with industry federations, unions, external expert advisors and their own workers wherever possible to achieve this. Risk assessments and training remain a key component in this process.
- Looking specifically at some of the guidelines issued, the HSE recognises the potential challenges when carrying out legal requirements for thorough examination and testing of plant and equipment and the guidance issued is intended to help industry maintain operations and viability through this period. There is an emphasis of cooperation by duty holders and inspection bodies to ensure access to equipment for scheduled testing continues, including those businesses which are currently closed. Whilst the regulations continue to remain in place and businesses must continue to ensure that equipment is safe to use, the HSE has confirmed its usual enforcement response will be to take no action if the only failing is that the testing of equipment is not carried out by the required date. Certain criteria, however, must be met for this to apply. The equipment must be critical for essential work and must still be capable of being operated safely. Duty holders must also be able to demonstrate that:
- all reasonable attempts to carry out the testing have been made, ensuring social distancing measures are complied with
- a thorough assessment of the increased risk has been undertaken and
- appropriate action has been taken to manage any increased risk
This is a welcome move, not least as the expiration of existing certification was not only putting customers in breach of strict terms of the regulations, but impacting on the terms of insurance cover which required the current certification to be in place.
- Specific guidance for the construction industry has also been issued through the Construction Leadership Council. The guidance issued is intended to introduce consistent measures on construction sites in line with the Government’s recommendations on social distancing and ensure employers and individuals make every effort to comply. The guidance remains clear: that the health and safety requirements of any construction activity must not be compromised at this time and if an activity cannot be undertaken safely, it should not take place.
- The risk of a workplace incident occurring and emergency planning will need careful assessment, not least due to the availability and response time of the emergency services. In addition, the availability of appropriate PPE for designated first aiders who might be exposed to large amounts of infectious aerosols from someone with COVID-19 if CPR is administered will become an increasing issue. Effective arrangements for work planning and ensuring a hierarchy of control measures supported by monitoring and reviewing compliance with health and safety regulations and guidelines must, therefore, be paramount on any work project.