Back to Work - Social Distancing and Companies' obligations under the Health and Safety Legislation

On 10th May, the UK Government announced that it would commence a phased and controlled reopening of selected sectors. We are (at the time of writing) in phase two of the controlled reopening. Under phase one, those who cannot work from home were actively encouraged to go to work, including those in the food production, construction, manufacturing, logistics, distribution and scientific research industries, while non-essential retail shops, as well as some additional outdoor attractions, reopened on the 15th June, as part of phase 2.

As the situation continues to evolve, many organisations are back at work, navigating the "new normal". Yet many businesses have not reopened, while others have extended working from home for the rest of the year, including 'Big Tech' giants Facebook and Google. That said, the gradual reopening of society has prompted much confusion for small and large businesses, especially concerning health and safety legislation.

What are employers' obligations in respect of COVID-19?

Various government bodies have produced guidance for employers to help make workplaces "COVID secure" with the right set of processes in place to protect those at higher risk. UK health and safety legislation requires all employers to assess and review risks and maintain an emergency procedures policy, should there be an event that creates a serious and imminent danger to people at work. Employers must communicate the policy to employees and provide appropriate training.

Social Distancing

It's recommended that employers ensure workers maintain a two-metre distance between themselves (as well as any other individual who uses their workplace). Social distancing is a public health measure introduced to reduce the spread of infection so where employers are not taking action to comply with relevant public health legislation, the government may take a range of actions, such as the provision of specific advice and enforcement notices.

COVID-19 Risk Assessment

Before reopening or restarting work, it's important to carry out a risk assessment in line with HSE guidance, consulting with trade workers or trade unions to maximise safety. Employers must share results of the risk assessment with its workforce and on the company website (for those with 50+ employees). You will need to assess:

Who might be harmed and how
What you're already doing to control the risks
What further action is required to manage the risks
Who needs to take action
When the work is needed by
Handwashing and Hygiene

By increasing the frequency of handwashing and surface cleaning, in line with government guidance, employers can prevent the spread of COVID-19. Employers are encouraged to provide hand sanitiser around the workplace, while regularly cleaning and disinfecting any frequently touched objects and surfaces. It's also recommended companies offer clear guidance for toilets, with hand drying facilities - either paper towels or electric hand dryers.

Working from home

Businesses should "make every reasonable effort" to enable working from home as a first option, and below are just a few of the critical steps that should be taken:

Discussing home working arrangements.
Ensuring staff have access to the right equipment to work safely and securely, for example, remote access to work systems and servers.
Including employees in all necessary communications.
Looking after their physical and mental wellbeing.
Checking how systems are working.
Writing down arrangements that have been agreed, so that the details are clear for all of those involved.

Managing Transmission Risk

There are specific job roles where it's not possible to be two metres apart at all times, and in these situations, employers must do everything in their power to manage transmission risk. This involves considering whether an activity needs to continue or exploring the possibility of using screens to separate people from each other. Employers may also need to assess the feasibility of staggering staff arrivals and departures, or using 'fixed teams or partnering' to reduce the number of people each team member is in contact with.

Can an employee insist on taking time off?

Understandably, employees may feel uncomfortable or nervous about returning to work, but the employer has to listen to their concerns and try to make the workplace as safe as possible. It's best to look at each situation on an individual basis, as some team members may be high risk (clinically extremely vulnerable). If an employer is unable to alleviate an employee's fears of returning to work, it may be of benefit (to both parties) to offer unpaid leave or request the member of staff to take holiday. If they refuse to do so, it may become a disciplinary matter, and an employee could potentially face dismissal (as confirmed in the ACAS guidance).

Why communication is key

It's imperative employers, employees and other workers understand the details of returning to work early on so that they feel included in the decisions that are made. While many individuals may feel excited about returning to work and helping the business enter the "new normal" it's perfectly acceptable for others to feel worried about catching coronavirus or passing it onto a loved one who is 'shielding'. By listening to their concerns, your company will be better placed to take the necessary steps to protect people.

Employers have a legal duty to ensure (as far as reasonably practical) the health and safety of their employees and anyone else affected by the business. If you require specific advice for your business concerning the recommencing of business operations or returning to the workplace, please do not hesitate to get in touch with our specialist Employment Law experts on 07000 81 82 83.