As businesses begin to reopen, employers should be aware of their obligations under COVID-19-specific government guidance. The pressure is on employers to navigate a new and potentially challenging working environment post lockdown. Employers should assess how the government guidance can be implemented in their workplace, consider the steps they need to take to make operational changes that consider the health, safety and welfare of employees, and remain mindful of their exposure to liability.

Guidance

Does government guidance constitute law? If I follow the guidance, do I have a defence from liability?

The government has published its latest coronavirus guidance including (a) general guidance entitled "Our plan to rebuild: the UK government's COVID-19 recovery strategy", and (b) specific guidance on working safely through coronavirus (for particular work activities and sectors). The guidance is non-statutory and does not constitute a change in law for the purposes of health and safety.

The Health and Safety at Work Act etc. 1974 (HSWA) remains the primary legislation governing health and safety in the workplace. HSWA requires employers to do all that is "reasonably practicable" to reduce the risk for their employees. Any employer who fails to do this is at risk of regulatory enforcement action by the Health and Safety Executive (HSE) or the local authority.

The new risks arising from COVID-19 mean that employers will need to carry out new risk assessments. Whilst the guidance is not law, if a company follows government guidance, including any sector-specific guidance, this may help to provide evidence that it is acting "reasonably" under the law. However, companies are still potentially liable for civil and regulatory claims.

The government has said that manufacturing, construction and logistics businesses "should be open" now and that they should comply with the guidance "as soon as reasonably practicable". Are businesses protected if they are open whilst taking steps to implement the guidance?

Employers are not protected from liability if they open before they have taken all the necessary steps to assess the risk and implement their mitigation measures. Employers are liable under regulatory and civil law from the date a workplace is reopened.

Is the government guidance different in England, Scotland, Wales and Northern Ireland?

Yes, the position is currently different in the devolved nations and is changing on a regular basis. Please consult local guidance for your areas.

Employer obligations

I am an employer and my employees cannot work from home. I would like to reopen. What do I have to do to comply with the law on health and safety?

Employers must carry out a risk assessment to assess the COVID-19 risks to its employees and to others affected by their business. The risk assessment must be uniquely tailored to your company, considering the size and nature of the company, your workforce, different premises, employee travel requirements, personal data protection, trade unions and any other factors that may impact the risk.

Employers should then implement practical measures to mitigate the risks identified in this assessment, in order to protect the health of employees and others interacting with the business.

Do I have to publish my risk assessment?

The government has said there is "an expectation" that any employer with more than 50 employees will publish its risk assessment on its website. This is not a legal requirement, but failure to do so may give rise to pressure from regulating authorities and trade unions.

Is the duty to minimise the risk or reduce the risk?

The duty is to reduce the risk as far as is reasonably practicable. None of the legal tests in civil and regulatory law require the employer to eliminate the risk completely.

What operational changes do I need to make?

The extent of operational changes to implement mitigating measures will largely depend on the outcome of each employer's risk assessment. This should be a bespoke analysis and differ from company to company.

Measures may include:

  • infrastructure adjustments for social distancing
  • frequent cleaning
  • staggered start times
  • additional hygiene facilities
  • testing
  • temperature checks
  • provision of PPE

The risk assessment process for COVID-19 may involve not only the identification of new bespoke control measures, but also a re-evaluation of existing risk assessments.

Should I include a testing regime for employees?

The government testing regime is now available to all people in the UK over the age of 5 years old.

Employers can arrange tests for employees, or the employee can go directly to the scheme to obtain a test.

Do I need to consult with my employees before making changes?

It is a legal requirement to consult with employees and trade unions on any major health and safety related changes.

Will I need to comply with any COVID-19-related reporting requirements?

You will need to notify your regulator of any significant changes to your operations. For example, if you are operating a COMAH site, you will need to inform the HSE of any changes.

Employers must make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when:

  • an unintended incident at work has led to someone's possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence;
  • a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease;
  • a worker dies as a result of occupational exposure to coronavirus.

Does the employer's duty of care towards employees also extend towards those persons retained by the company on a consultancy basis?

Under the HSWA, the employer owes a duty of care to protect employees, contractors and any other persons who come into contact with the company (including members of the public). This means the duty will extend to those hired by the company on a consultancy basis.

What are the employer's duties to its customers in a face-to-face context?

Legally, the employer's duty under the HSWA extends to customers. This means employers should implement practical measures in retail stores to reduce the risk to customers as far as is reasonably practicable.

The retail guidance on the gov.uk COVID-19 hub provides more specific industry advice than we cover here.

Remote working

Does the employer have to pay for suitable workstations at home?

The employer's duty extends to employees working from home. Employers should arrange for workstation assessments to be carried out for all employees who have moved to home working on a long- term basis, irrespective of whether or not they provide the equipment. For these purposes, a period of a few weeks would likely be considered temporary but a few months would be long term.

Given current guidelines on social distancing, you should ask employees to conduct their own assessments at home, e.g. by using the checklist available at https://www.hse.gov.uk/pubns/ck.1htm

Software solutions are also available to assist with workstation training and assessments. Take action to reduce risks identified in workstation assessments, e.g. providing items such as a keyboard, mouse, full-size screens or height adjustment stands to address ergonomic problems.

There is no requirement for employers to provide larger items such as ergonomic chairs or height adjustable desks, but you could encourage workers to try other ways of creating a comfortable work environment e.g. using supporting cushions, taking regular breaks, etc. Special consideration should be given to employees who are, or may be, disabled under equalities legislation.

What are the key considerations for employers relating to remote working?

Mental health is a key consideration for remote working, so ensure there are clear communication channels for employees to report and resolve any work-related health problems. Ensure you have procedures in place to keep in contact with, supervise and support home workers.

You may need to adjust expectations for employees' performance if, for example, they are also having to deal with childcare issues.

Update your risk assessments to take new working arrangements into account and update your health and safety policy in line with this if required.

Employee welfare

What do I do if staff are not comfortable coming back to the workplace or even refuse?

Employees should be able to feel confident that their employer is following government guidance and that they will be safe going back to work. Communication is important – be transparent with any new measures and respond to each individual's circumstances. There is specific guidance on certain vulnerable groups who are advised to stay at home, or to work from home if possible. These groups include:

  • clinically vulnerable
  • government-identified high-risk groups
  • disabled employees
  • pregnant women

Try to work with the individual on a case-by-case basis, considering all circumstances. If the employer has followed government guidance and has implemented a sufficient risk assessment and mitigation measures, the employee may not be acting reasonably if they refuse to come into work. If they do have a reasonable belief that returning to work would place them in serious and imminent danger, they are entitled to refuse.

Liability

If it is the company's responsibility to risk assess their employee's exposure to COVID-19, then does that mean that the company is potentially liable for regulatory and civil claims, if the control measures fail anyway?

Yes. Even if a company puts in place measures to reduce employees' exposure to COVID-19 and the measures fail, the authorities still have the power to enforce against the company, if they consider that the company is in breach or that the measures which are in place are insufficient. The authorities will be concerned about the risk of exposure, so a "near miss" situation could also result in enforcement and ultimately criminal prosecution.

Civil claims for negligence from employees are also a possibility, although an employer's duty of care for COVID-19 is likely to be assessed by the courts differently than for "work related" illnesses e.g. arising from asbestos handling or dust inhalation. A claimant would need to establish the usual tests (breach, foreseeability and damage) and the burden would be on them to prove this. They would therefore need to prove that the employer's breach led to their contracting COVID-19. Once the new track and trace arrangements are in place, it may be possible to establish with more certainty where a patient contracted COVID-19. This would make the claim easier to prove.

Does following the guidance act as a defence for claims against me as an employer?

Following the guidance and the supplemental industry guidance is certainly likely to help to mitigate the risk of prosecution under health and safety legislation and of civil claims. It will not, however, provide you with a guaranteed defence, nor will it safeguard you from civil or regulatory claims.

It will, however, be a key way of showing you have met the duty of care to your employees. In the event of regulatory enforcement action (including prosecution), it may assist in defending or appealing any enforcement action or mitigating any fine. Meticulous record-keeping around changes to systems, procedures and processes may also help to avoid claims in the first place, and may assist you in regulatory investigations.