Last updated:  27th May 2020

Last week saw the Government adopt a clear change of emphasis in its address to the public and businesses alike. From what was once a clear message to “stay at home” has now switched to “stay alert”.  The hospitality sector remains closed except for takeaways but for those in the sector who are office based the Government is now making it clear that anyone who cannot work from home should be “actively encouraged to go to work”.

However, given the prevalence of Coronavirus across the Country, this raises obvious questions for businesses who wish to return to work but, at the same time, have concerns about ensuring the health and safety of their workforce and the possible legal ramifications if they get things wrong.

As a means of assisting with this dilemma, the Government, in conjunction with the other bodies such as Public Health England (PHE) and the Health and Safety Executive (HSE), have issued a plethora of further guidance which makes it clear that, for those employees who cannot work from home, companies need to ensure that their working environments are “COVID-secure”.  Although the hospitality sector remains closed there is useful information in the Government guidance which could help operators plan for an eventual reopening of outlets.

How can companies create a ‘COVID-secure’ workplace?

Firstly, it is important to note that the latest guidance recognises that no business can completely eliminate the risk of COVID-19 and, therefore, the duty on employers is to reduce the risk of transmission as much as is reasonably practicable.

With that in mind, all companies must have regard to the Governments latest guidance which sets out various safeguards which should be adopted in the workplace. These focus on the need for a risk assessment, frequent cleaning, and, not surprisingly, social distancing. Where the latter is concerned, all companies should consider the following safeguards so that, where possible, a distance of 2 metres is maintained in the workplace;

  • putting up signs to remind workers and visitors of social distancing guidance
  • avoiding sharing workstations
  • using floor tape or paint to mark areas to help people keep to a 2 metre distance
  • arranging one-way traffic through the workplace if possible
  • switching to seeing visitors by appointment only if possible

Where it is not possible for people to be 2 metres apart, companies should do everything practical to manage the transmission risk by:

  • considering whether an activity needs to continue for the business to operate
  • 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 whenever possible
  • staggering arrival and departure times
  • reducing the number of people each person has contact with by using ‘fixed teams or partnering’

Both the HSE and the Government have also published supplementary guidance which applies these key principles to practical scenarios in the workplace so that companies are assisted when undertaking a ‘root and branch’ review of safety. The guidance released by the Government is particularly helpful in that it applies these key principles in 8 different workplace environments;

Ultimately, COVID-19 risk assessments are at the heart of achieving a ‘secure’ workplace and all of the recently published guidance should serve as a helpful checklist to companies when they are carrying out this task. Companies should consult their employees, or their representatives, throughout this process. This is echoed in all of the recent guidance which even extends to suggesting specific questions which companies should consider asking their employees.

Once this process has been undertaken, the guidance encourages companies to publish their risk assessments online (especially where they have more than 50 employees). Companies should be mindful that publication is not a legal requirement and, providing that they can demonstrate that they have carried out a suitable risk assessment, which has been appropriately communicated to their workforce, they cannot be criticised by the regulator.

It is also worth noting that the recently introduced ‘Test and Trace’ service does not change the existing guidance on how to create a ‘COVID-secure’ workplace. Rather, this service supplements the existing guidance by identifying people who have had close recent contact with someone who has tested positive for Coronavirus and advising them to self-isolate.

What should companies expect going forward?

Following the recent announcement that the HSE are to receive a cash injection of £14 million, companies should expect a surge of workplace inspections by the regulator who will, inevitably, assess the adequacy of safeguards by reference to the recent guidance. Although this guidance is not law, it sets out the framework for what the HSE consider “COVID-secure”, and therefore any organisation who cannot demonstrate that they have taken this into account as part of their risk assessment are likely to face enforcement action.

In those circumstances, the HSE have already outlined their approach which “includes the provision of specific advice through to issuing enforcement notices to help secure improvements.” Whilst this appears to suggest that prosecutions are off the table, companies should be careful not to read too much into this as, strictly speaking, there would be nothing to prevent the HSE from bringing criminal proceedings in circumstances where it was deemed to be in the public interest.

As a result of the Government’s recent shift in policy, there is an obvious danger that employees will be urged to return to work before a suitable and sufficient risk assessment has been carried out. Companies need to withstand this temptation and, over the longer term, consider methods of surveillance so that they can closely monitor the effectiveness and levels of compliance with any new working practices. Although the latest guidance makes very little reference to the need for monitoring, which is perhaps ironic, many will see this as crucial to ensuring a safe and gradual return to work across all sectors.

Contact our Compliance & Regulatory team today if you require advice regarding this new guidance or any other issue concerning health and safety in the workplace.

The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.