Employers have a duty to protect the health and safety of their employees. This duty will be particularly important as employees start to return to work while COVID-19 remains in circulation.
The Health and Safety Executive provides that under the Management of Health and Safety at Work Regulations 1999, the minimum an employer must do is:
- identify what could cause injury or illness in its business (hazards);
- decide how likely it is that someone could be harmed and how seriously (the risk); and
- take action to eliminate the hazard, or if this isn’t possible, control the risk.
As the coronavirus pandemic continues and as guidance emerges from different governments across the UK, it is crucial that businesses consider the health and safety of their employees prior to implementing a return to work and/or allowing employees to continue to work at their premises.
The government, in consultation with industry, has produced guidance to help ensure workplaces are as safe as possible, describing such workplaces as being “COVID-secure.” There are 8 separate guides available online covering a range of different types of work, including:
- Construction and other outdoor work;
- Factories, plants and warehouses;
- Labs and research facilities;
- Offices and contact centres;
- Other people's homes;
- Restaurants offering takeaway or delivery;
- Shops and branches; and
It should be noted that at present, the Scottish government is not encouraging employers whose business is presently closed to re-open quite yet. It remains to be seen if the Scottish government will supplement or substitute the UK government’s guidance with its own.
As many businesses operate more than one type of workplace, such as an office, factory and fleet of vehicles, they may need to use more than one of the above guides to think through what needs to be done to keep people safe at work.
Fundamentally, businesses must take steps to reduce risk to the lowest reasonably practicable level by taking preventative measures, in order of priority. This includes:
1. In every workplace, increasing the frequency of handwashing and surface cleaning.
2. Making every reasonable effort to enable working from home as a first option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines set out by the government (keeping people 2m apart wherever possible).
3. Where social distancing guidelines cannot be followed in full, in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and if so, take all the mitigating actions possible to reduce the risk of transmission between their staff.
Further mitigating actions include:
- increasing the frequency of handwashing and surface cleaning
- keeping the activity time involved as short as possible
- using screens or barriers to separate people from each other
- using back-to-back or side-to-side working (rather than face-to-face) if possible
- reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others)
4. Finally, if people must work face-to-face for a sustained period with more than a small group of fixed partners, then businesses will need to assess whether the activity can safely go ahead. In this assessment businesses should have particular regard to whether the people doing the work are especially vulnerable to COVID-19.
The guidance also confirms that employers should carry out an assessment of the risks posed by COVID-19 in the workplace as soon as possible. Employers can carry out risk assessments themselves or appoint a competent person to assist with such a task.
General guidance on risk assessments for smaller, low-risk businesses is available via the Health and Safety Executive (click here) with guidance for employers in larger and higher-risk businesses also available (click here). Please speak to your health and safety advisors if you are in doubt as to which types of risk assessment are appropriate for your business.
Employers should record the steps taken to comply with health and safety legislation, and a risk assessment document is a helpful tool in this regard. The Health and Safety Executive website provides a template risk assessment document online as a starting point, with adapted templates showing how risk assessment documents may vary from one industry to the next. Importantly, a risk assessment must be adapted depending on the particular business, to highlight:
- who might be harmed and how;
- what you’re already doing to control the risks;
- what further action you need to take to control the risks;
- who needs to carry out the action; and
- when the action is needed by.
Note that businesses with fewer than five workers don’t have to write anything down as part of their risk assessment, though this may be helpful.
Communication with staff forms a key part of this process and the government guidance confirms that the results of risk assessments should be shared with the workforce and, where possible, shared on the employers website (noting that it is an expectation that employers with over 50 workers would publish its risk assessment on its website). The government has provided a poster to be displayed in a workplace to show the business has followed the government’s guidance.
Whilst employers should ensure that it is safe for employees to return to the workplace where the work cannot be carried out from home, the risk assessment process is one that is ongoing, and this should be regularly reviewed in conjunction with staff and any further guidance from the government.