Working safely during coronavirus: employers, employees and the self-employed

The Government has published "Working Safely during the Coronavirus (COVID-19)". Ashtons Legal will be reviewing this from a regulatory and employment law perspective at a Webinar on Thursday 21 May 2020 at 11:00am. (Click here to register for the webinar). The Guidance is divided into eight work areas:

  1. Construction and other work
  2. Vehicles
  3. Factories, plants and warehouses
  4. Offices and Contact Centres
  5. Homes
  6. Laboratories and Research Facilities
  7. Restaurants offering takeaway or delivery
  8. Shops and branches

There are five key areas covered within the Guidance:

  1. work from home if you possibly can
  2. employers should carry out a COVID-19 risk assessment in consultation with workers or trade unions (this is in addition to the standard health and safety risk assessments that all businesses must complete)
  3. maintain a two-metre distance where possible, for example by staggering start times and changing break rooms
  4. if not possible, manage the transmission risk
  5. reinforce cleaning processes

The work of many businesses will, of course, cover a range of activities. They will need to consider a collection of measures and advice from each of the guides relevant to them.

For example, distribution businesses will operate warehouses, vehicle fleets and offices. Part of this will include work in or from a vehicle - the guidance is aimed at lorry drivers, couriers, work vehicles, mobile workers, on-site transit and field forces. So specific issues to be worked through will be:

  • how to keep a two-metre distance when inside vehicles
  • how to mitigate risk for work within two metres
  • how to manage tasks requiring more than one person
  • avoiding multiple occupancy vehicles / not sharing where possible.
  • mitigating steps: clear signage; single person / contactless refuelling; physical screening; sitting side-by-side not face-to-face; increased ventilation; pairing up in crews; regular vehicle cleaning.

There is also generic advice common to all sectors and types of work, stating:

'you should have particular regard to whether the people doing the work are especially vulnerable to COVID-19' 'no one is obliged to work in an unsafe work environment' 'in every workplace, increasing the frequency of handwashing and surface cleaning'

'businesses and workplaces should make 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)' 'where the 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) whenever possible - if people must work face-to-face for a sustained period with more than a small group of fixed partners.....need to assess whether the activity can safely go ahead.
  • 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)'.

If they have not already done so all businesses will need to identify risks, assess, create work procedures, inform staff, document everything and monitor compliance. The Government has indicated that the Health & Safety Executive will be tasked to carry out checks and impose proportionate and appropriate enforcement measures if required. Much has been said about workers being able to refuse to attend an unsafe place of work and there are protected rights relating to health and safety under the Employment Rights Act 1996.

Raising concerns over a potential breach of COVID-19 guidance could also amount to a protected disclosure (or "blowing the whistle").

There are potential employment law liabilities therefore for employers in getting this wrong, along with the HR and reputational implications of doing so.

Care should, therefore, be taken to ensure a safe place of work and to properly protect returning staff, particularly those that are more vulnerable.

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