Last week, the UK Prime Minister confirmed that step 4 of the 'roadmap', a step-by-step plan to ease COVID-19 restrictions in England, would commence on 19 July. Step 4 represents a significant relaxing of lockdown measures. While step 4 signals an end to the formal work-from-home instruction, it is important for employers to remember that work life will not return to normal. A return to the workplace should be gradual and should take account of the latest guidance on working safely during COVID-19 ('the Guidance'), as well as legal obligations on employers.
What does the Guidance say?
The Guidance, which applies to offices, factories and labs, provides direction on how to open workplaces safely from 19 July onwards while reducing the risk of spreading COVID-19. There are six priority actions listed in the Guidance.
- Complete a health and safety risk assessment that includes the risk from COVID-19. As part of this process, employers have a legal duty to consult with workers, trade unions or representatives, by listening and talking to them about the work they do and how COVID-19 risks will be managed. Employers should also share their risk assessment results with the workforce.
- Provide adequate ventilation in indoor spaces where people are present. Employers can do this by opening windows, air vents and doors, using mechanical ventilation and identifying any poorly ventilated spaces as part of their risk assessment, and taking steps to improve fresh air flow in those areas.
- Clean more frequently, particularly surfaces that people touch a lot. This includes cleaning work areas and equipment between uses, and frequently cleaning touch points such as door handles and keyboards. Employers are also advised to use signs and posters to remind people to maintain hygiene standards, by washing their hands regularly and not touching their faces.
- Turn away staff members or customers with COVID-19 symptoms. Staff members or customers should self-isolate if they or someone in their household has symptoms, if they or a close contact has had a positive COVID-19 result, or if they have been told to self-isolate by NHS Test and Trace. The Guidance makes clear that it is an offence to allow a worker to enter the workplace if the employer knows that they should be self-isolating. Employers will therefore need to think about whether to impose an obligation on employees to confirm their COVID-19 status, to disclose any NHS Test and Trace notifications, or to require temperature screening.
- Enable people to check in by displaying an NHS QR code poster. The Guidance states that employers can (but are not legally required to) enable people to check in to the workplace by displaying a QR code. There is no requirement to ask people to check in or to turn people away if they refuse. This is more likely to be used in hospitality settings that offices.
- Communicate with and train staff and visitors on safety measures. Clear guidance should be provided on how to reduce the risk of spreading COVID-19, through the employer’s website, by phone or email or using on-site signage. Any changes in working arrangements should be clearly communicated and hosts for visitors should be provided with relevant training.
Other suggestions in the Guidance include reducing the number of people workers come into contact with through the use of ‘fixed teams’, screens, back-to-back or side-to-side working. The Guidance also acknowledges that, while face coverings are no longer a legal requirement, employers might want to consider encouraging their use in enclosed and crowded areas. Commentators have speculated that making face coverings non-mandatory but advisable will cause confusion amongst employers and individuals.
Going one step further, a recent government guide for employers on vaccination urges them to encourage and support staff to get vaccinated. Making attendance at the workplace conditional upon vaccination is likely to carry real legal risk (particularly if it is applied on a blanket basis in such a way as to exclude those with health conditions or the young from the workplace), but sharing information with employees about the facts and facilitating workforce vaccination is sensible. In addition, the Guidance requires employers to 'give extra consideration to' individuals at higher risk. The Health and Safety Executive asks employers to consider the risk to workers who are particularly vulnerable and to put in place controls to reduce that risk in its guidance on protecting vulnerable workers. There is no one way to balance the various competing interests that will be at play here; employers will need to take a reasonable approach, considering the nature of their workforce, their obligations to make reasonable adjustments where necessary and the desire to avoid a ‘two-tier workforce’.
Ultimately, the Guidance recognises that ways of working have shifted through the pandemic, and that many employers will be looking at hybrid models of working going forwards. Acas has recently published advice to assist employers who are considering hybrid working. This includes guidance for employers on consulting with employees and their representatives on hybrid working. Importantly, Acas reminds employers to check whether they will need to make changes to employment contracts in order to introduce hybrid working (this may be necessary for example where employees will not be permitted to attend the office on particular days to facilitate hybrid working). Employers are also reminded to take care not to exclude or discriminate, and to continually support employees’ mental health, when implementing these new working arrangements.
What are the potential consequences of not following the Guidance?
Crucially, the Guidance supplements and does not supersede existing legal obligations, and such obligations are multi-layered for employers.
At common law, an employer has a duty of care towards its employees to take reasonable steps to prevent foreseeable harm occurring to them. What will constitute 'reasonable steps' will always be a question of fact but conformity with broader industry standards does, in principle, help to show that a reasonable standard of care is being taken. The Guidance is therefore particularly important in this context – following the Guidance will help an employer to show that it took reasonable steps. If an employer was judged to have failed to satisfy the relevant duty of care, a claimant could bring a civil law claim under the tort of negligence and would seek a financial remedy based on their loss.
But certain duties employers owe to their employees can carry criminal penalties. Under the Health and Safety at Work Act 1974, employers owe a statutory duty to ensure, so far as reasonably practicable, the health, safety and welfare of every employee.
There are two possible strands of liability for employers for breach of health and safety legislation:
- the Health and Safety Executive or local authority may take action against employers under the criminal law (but initial steps will likely include formal warning letters, or statutory improvement or prohibition notices); or
- the affected individual may make a civil claim for compensation.
The health and safety legislation will be particularly relevant when staff begin to return to the workplace but ultimately, it is unlikely to be in the public interest to prosecute employers where they have followed the Guidance.
Finally, under sections 44 and 100 of the Employment Rights Act 1996, workers have the right to not be subjected to any detriment or to be dismissed on the basis that they left or refused to return to work or took appropriate steps to protect themselves because they reasonably believed that they were in serious and imminent danger. We have already seen some COVID-19 cases make their way through the employment tribunals in recent months where employees have relied on these statutory provisions to challenge their employer’s actions. Employers should also bear in mind that employees might alternatively claim protection via whistleblowing legislation, for which there is no financial cap on compensation.
It is clear that the requirements placed on employers in the COVID-19 context are multi-faceted and, at times, unclear. They will need to carefully balance a desire to return to normality with a need to demonstrate that they have implemented appropriate COVID-19 health and safety measures to protect their workforce.
