With the easing of lockdown and the return to work for many together with continuing to deal with the pandemic there is the potential that various employment matters may arise, one aspect of which being health and safety.
What is the current government guidance is for returning to work and reopening workplaces?
- On 11 May 2020, the government announced easing of lockdown measures and published “Our Plan to Rebuilt: The UK Government’s COVID-19 recovery strategy”
- On 12 May 2020, in England, the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020 came into force.
Under step one of the recovery strategy and, from 13 May 2020, workers who cannot work from home are permitted to travel to work if their workplace is open. From the same date employers were advised to follow “COVID-19 Secure” guidelines as soon as practicable to try and minimise the infection rate.
Step two came into effect on 1 June 2020. This permitted the phased opening of non-essential retail from 15 June 2020 where it is safe to do so and subject to the ability to comply with the COVID- 19 Secure guidelines.
Step three comes into effect from 4 July. This will permit the partial reopening of some businesses and premises such as those dealing with hospitality and public places provided they comply with the COVID-19 Secure guidelines. Some personal care and leisure facilities are still not yet permitted to open.
In addition, from 4 July 2020 in order to assist the hospitality sector to start reopening a new “one metre plus” social distancing rule in England. This means that where it is possible to keep two metres apart, people should. But where it is not, it is advised that people keep a social distance of one metre plus, meaning they should remain one metre apart while taking mitigations to reduce the risk of transmission.
Five ministerial taskforces have been established to assist particular sectors of business who will provide further guidance over the coming weeks and months. Employers will need to ensure that they keep up to speed with significant developments around health and safety guidance and legal obligations.
The guidance across each industry essentially focuses on the following principles:
- Work from home if possible
- How and when people travel to work
- Avoid crowds
- Keep hands and faces as clean as possible
- Reduce contact with people
- Keep two metres apart or where this is not possible 1 metre plus and avoid face-to-face contact
5 steps to working safely
To support the opening (or reopening) of businesses and premises the government has published “5 steps to working safely”. These steps sit alongside the COVID-19 Secure guidance.
- Step 1 – Carry out a COVID-19 risk assessment in line with the HSE guidance
- Step 2 – Develop cleaning, handwashing and hygiene procedures.
- Step 3 – Employers should take all reasonable steps to help people to work from home
- Step 4 – Where possible, employers should maintain 2 metres between people
- Step 5 – Where it is not possible for people to be 2 metres apart, employees should work ‘one metre plus,’ with employers should do everything practical to manage the transmission risk
The Secure guidance is not a mandatory set of legal requirements. It does not supersede any legal obligations relating to health and safety, employment or equalities. Therefore, existing legal obligations must be complied with including those relating to individuals with protected characteristics under the Equality Act 2010. It is however likely to be taken into account when considering if an employer has complied with their legal obligations in relation to health and safety.
The government’s objective is that employers take preventative measures to reduce the risk to the lowest reasonably practicable level, in order of priority.
Clinically vulnerable and clinically extremely vulnerable
“Clinically vulnerable people” are those who may be at increased risk from COVID-19, including those aged 70 or over and those with some underlying health conditions.
“Clinically extremely vulnerable people” are those who have specific underlying health conditions that make them extremely vulnerable to severe illness if they contract COVID-19.
The Secure Guidance notes that clinically extremely vulnerable individuals have been strongly advised not to work outside the home. Furthermore, clinically vulnerable individuals, who are at higher risk of severe illness (for example, people with some pre-existing conditions), have been asked to take extra care in observing social-distancing and should be helped to work from home, either in their current role or in an alternative role
The guidance states that if clinically vulnerable individuals cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay 2 metres away from others. If they have to spend time within 2 metres of others, an employer should carefully assess whether this involves an acceptable level of risk.
The guidance also states that particular attention should also be paid to people who live with clinically extremely vulnerable individuals.
The legal matrix upon which associated health and safety obligations sit
Employers have statutory and common law duties for health and safety. The Health and Safety at Work etc. Act 1974 (“HSWA 1974”) places a general duty on a company, its directors, managers and employees to ensure so far as is reasonably practicable, the health, safety and welfare at work of all their employees. Employers employing 5 or more people must have a written health and safety policy.
Each of the Secure Guidelines notes that the HSE may take enforcement action against employers who do not take action to comply with the relevant public health legislation and guidance
There is also an implied duty that an employer will take reasonable care for the health and safety of employees. The implied term of mutual trust and confidence will also be relevant.
Where the breach of an implied term amounts to a fundamental breach of contract, the employee may elect to resign and claim constructive dismissal.
Where an employee is pregnant there are additional health and safety duties including:
(a) Risk assessments in respect of the employee or their child.
(b) To alter an employee’s working conditions/hours of work to avoid any significant risk or if this is not reasonable, to offer suitable alternative work on terms that are not substantially less favourable
Given that pregnant women are identified as clinically vulnerable under the Government’s socially distancing guidance, if they cannot work from home and there is no suitable alternative work from home, an employer should consider suspension on full pay under the Maternity Regulations.
The legal protection of employees who raise health and safety concerns.
Section 100 Employment Rights Act 1996 provides that a dismissal will be automatically unfair where it is for one of the following reasons:
(a) Dismissal for designated health and safety activities
(b) Dismissal of health and safety representatives or committee members
(c) Dismissal for raising health and safety concerns through other reasonable means
(d) Dismissal for leaving or staying away from dangerous workplace – Where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.
(e) Dismissal for taking action to prevent danger – Employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.
Dismissal for one of the aforementioned reasons (or where it is the principal reason) is automatically unfair, there is no qualifying service requirement and compensation is uncapped. A dismissal contrary to s100(1)(a) or (b) attracts a minimum basic award of £5,853
Section 100 also covers constructive dismissal claims. It is not clear from case law whether a breach of s100 would in itself amount to a fundamental breach of contract and therefore this is likely to be considered on a case by case basis.
The content of this article must not be taken as legal advice as the guidance and law is constantly evolving.
If you are experiencing any concerns in relation to health and safety at work please contact our employment law team.