Posted on 2/06/2020 by Jo Hodge
Guest post: Louise Lawrence
The government’s advice is still that employees should work from home wherever possible. However, where employees cannot work from home, the government is now encouraging those employees to return to work if they can do so safely. Although we do not know when all employees will be encouraged to return to their workplaces, it is sensible for employers to start planning now.
Employers are under a legal obligation to ensure that employees have a safe working environment. The government has published eight sets of guidance for working safely during Covd-19 for different work settings such as office environments and where employees are working in another person’s home. In summary, the guidance for all employers is that they must undertake a risk assessment; set up safe systems of work (informed by the risk assessment); implement the safe systems of work and keep the systems under review.
The government has also issued high level guidance about implementing protective measures in education and childcare settings. This guidance highlights and points to the importance of implementing minimised contact with individuals, cleaning hands more often, cleaning frequently touched surfaces and adhering where possible to social distancing measures.
A Covid-19 risk assessment will be mandatory for all employers and is a key part of any return to work plan. For those with five or more employees, the risk assessment must be in writing; for those with more than 50 employees, it should be published on the organisation’s website.
It will be advisable to consider within the risk assessment all of the arrangements set out in the guidance for the relevant work setting. However, employers should also think about other relevant guidance, such as sector specific guidance issued by trade bodies or trade unions.
Once the risks have been considered and identified, the risk assessment must then go on to address the risk i.e. how the work place, equipment and processes will be adapted and an overall prevention policy should be developed.
Consultation with all employees on health and safety measures is already mandatory under the Health and Safety at Work legislation, but is often overlooked in organisations where health and safety is not a dynamic or complex aspect of the workplace.
The government guidance emphasises that it is important for employers to consult with employees regarding the measures taken to reduce transmission of Covid-19 in the workplace. With many charities and not-for-profit organisations facing significant financial pressures at this time, good communication and consultation with employees will also be key to reducing the risks of disputes with employees (and the costs associated with this).
The consultation should take place with representatives of recognised trade unions and/or non-union employee representatives elected by the workforce. Consultation may take place with employees direct, but this is often impractical for larger organisations. Employee representatives must be provided with certain information, facilities and time off.
Consultation should take place at the time the risk assessment is being carried out, and on a continuing basis since feedback from the workforce will ensure that measures are adapted and improved when they are put into practice.
No Compulsory Return
The government’s guidance states that no employee can be compelled to return to an unsafe environment. Employees are also protected by employment legislation from detriment and/or dismissal if they take reasonable steps to protect themselves or others from serious and imminent danger e.g. staying away from an unsafe work place.
A number of employers are asking employees to participate in a survey regarding their own personal circumstances such as their medical situation (and those in their household); their childcare responsibilities; how they travel to their workplace; and their views about returning to the workplace so that they can have an appropriate dialogue with employees about returning to the workplace. Many employees are feeling anxious about returning to work and by having an open dialogue with employees about their personal circumstances, their return to the workplace and what steps the employer is taking to minimise the risks, this should hopefully allay the employee’s fears.
Although the specific recommendations for each workplace setting vary to some degree, there are common themes, including:
- physical separation of the workforce using screens, signage and markers, one-way systems, different entrances and exits, shift systems, staggered start and leaving times, avoiding physical meetings;
- additional cleaning and hygiene measures;
- maintaining two metre distancing;
- limits on work-related travel; and
- management of visitors and deliveries.
The use of PPE is not recommended as a primary response, unless it is already in use in the workplace.
Employers should be aware that just setting up the above measures will not be sufficient and they must ensure they are implementing them properly with adequate communication, notices and physical signs. For instance, where an employer has put up signs encouraging employees to wash their hands, it will also be the employer’s responsibility to ensure that there is adequate access to sinks and water and hand drying options to avoid cross-contamination. The employer must then continue to ensure that its employees are following these instructions.