In these uncertain times of unprecedented disruption to public services and industry across the UK, and worldwide, every employer must tread a very fine tightrope between securing the future of its business (and with it, the jobs of its employees) against the safety and welfare of its employees and the wider public.
When the dust eventually settles after the COVID-19 storm there will undoubtedly be a raft of regulatory investigations and prosecutions in connection with the action, or inaction, of employers over the management of the situation.
Under the Health and Safety at Work etc. Act 1974 every employer has a duty to ensure, so far as reasonably practicable the health, safety and welfare of (1) its employees whilst they are at work and (2) the wider public affected by its undertaking. An organisation, whether public or private, can be convicted of a health and safety offence where its actions or omissions expose individuals to the risk of harm and it was practicable or reasonably practicable to do more than was in fact done. The prosecution, whether this be the Health and Safety Executive or Local Authority do not need to prove any breach of health and safety legislation caused an individual to contract COVID-19, merely that the systems of work were inadequate at reducing the risk of exposure so far as reasonably practicable.
The Sentencing Guidelines afford the Courts extensive sentencing powers when sentencing offenders.
So, in such extraordinary times, what practical steps should employers be doing to ensure the safety of its workplace?
1. First and foremost – Follow the Government’s advice
The Government’s website provides clear advice to employers and businesses on the steps that should be followed to limit the impact of COVID-19.
With the exception of some non-essential shops and public venues the Government has not suggested other businesses close – indeed it positively states the importance of businesses to carry on. Businesses should however encourage their employees to work at home, wherever possible. The softest targets for regulatory investigation in due course will be the organisations that simply seek to ‘operate as normal’ requiring employees to commute and operate at the employers’ premises when it is reasonably practicable for some or all tasks / functions to be undertaken remotely. This is particularly relevant to any organisation the Government has specifically requested to close during the current lock down.
Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.
Are reasonable steps being undertaken to facilitate remote working?
Sometimes this will not be possible, as not everyone can work from home. Certain jobs require people to travel to their place of work – for instance if they operate machinery, work in construction or manufacturing, or are delivering front line services.
The requirements in relation to the working environment extent to ensuring the education of staff and facilitating the hygiene and social distancing steps the Government has stipulated. If someone becomes unwell in the workplace with a new, continuous cough or a high temperature, they should know to report this immediately, be sent home and advised to follow the advice to stay at home. This advice still stands for those colleagues working remotely.
Employees should be reminded to wash their hands for 20 seconds more frequently and catch coughs and sneezes in tissues. Hand wash facilities (soap and water and/or hand sanitizer should be readily available). It is also recommended that Government-issued safety posters be prominently displayed.
Frequently clean and disinfect objects and surfaces that are touched regularly, using your standard cleaning products
2. Personal Protective Equipment
There is conflicting guidance in relation to the use of face masks. The Government guidance does not stipulate the use of masks. The World Health Organisation suggests use of surgical masks only for those who have cold-like symptoms (in which case the overall guidance is these individuals should probably self-isolate as the virus can often present as a cold to begin with).
The HSE guidance requires fit testing to be carried out. It states tight-fitting respirators (such as disposable FFP3 masks and reusable half masks) rely on having a good seal with the wearer’s face. A face fit test should be carried out to ensure the respiratory protective equipment (RPE) can protect the wearer. Fit testing should not be undertaken on someone who is displaying symptoms.
For context, most NHS staff are fit tested and use surgical masks only unless there is an aerosol generating procedure in which case they are required to use higher specification FFP3 masks.
In short, there is no definitive guidance for employers requiring the use of surgical masks (or indeed FFP3 masks) as part of the continuity of business. Any masks distributed by employers as a method to combat the virus will be assessed against the requirements of the Personal Protective Equipment at Work Regulations 1992.
3. Social distancing
Perhaps one of the hardest measures to implement and enforce is the requirement on employers who have people in their offices or onsite to ensure employees are able to follow Public Health England guidelines including, where possible, maintaining a 2 metre distance from others.
This will require an assessment of your working practices and equipment in the context of the ergonomics of the premises/site, education to staff and enforcement through supervision. This requirement will pose unique challenges to a long list of employers across a range of industries including the construction, manufacturing and logistics.
A key issue for employers is how to train employees, particularly new starters, on safe working practices and the key aspects of their role during remote working and social distancing. This is particularly prevalent for employers who are experiencing increased staff illness and are considering the engagement of temporary workers over the coming months.
Practically, employers may consider selecting fewer tasks for each individual staff member thereby reducing the extent of overall training provided – key topics such as the safe operation of machinery, working at height, systems of work, PPE and traffic management should however continue as applicable. Classroom training should also be converted to e-learning where practicable.
Employers should however be alive to the fact that their regulatory requirements in relation to the duty to train and inform staff will not be relaxed during the COVID-19 crisis. Indeed, the pairing back of training whilst taking on more staff to increase production could be interpreted as profit before safety by the Courts and so a very careful approach must be taken.