- If the workplace is open, what steps must we take to make it Covid-19 Secure?
All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, you must take the following steps:
Carry out suitable and sufficient risk assessments to identify the risks. Risk assessments should also look at different groups of workers (e.g. vulnerable workers), for whom you may need to take extra health and safety measures.
Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.
To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the government’s guidance on working safely during coronavirus.
The guidance is not the law but is nonetheless likely to be taken as the minimum you need to do to be compliant with the law. It must be read in conjunction with other health and safety laws and regulations.
The government has promised a review of social distancing measures, face masks and other long-term measures ahead of Step 4 (pencilled in for 21 June). This may result in the relaxation of some of the Covid-secure guidelines. The government is also exploring the role that Covid-status certification could play in reducing restrictions on social contact and improving safety.
- Must we publish our risk assessment?
The law already says that significant findings from risk assessments must be written down if you have more than five staff. The guidance now also recommends that you publish your Covid-19 risk assessment on your website, and that all employers with over 50 workers will be expected to do so. If employees are working from home, as risk assessment should concentrate on the homeworking risks. The Health and Safety Executive (HSE) provides general guidance on how to do a risk assessment, which would need to be adapted for Covid-19 using the appropriate workplace guidance for your particular environment.
- What responsibilities do our employees have for their safety?
Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It is therefore important for you to educate and train your staff on the practices and policies you have decided to adopt.
- Should we consult employees about our workplace safety plans?
Yes. Government guidance emphasises that employers have a duty to consult their people on health and safety. The guidance encourages employers to have individual discussions with their workers where reasonable to consider any uncertainties they have about precautions in place to make the workplace COVID-secure. In addition, the guidance summarises your statutory responsibilities to consult safety representatives.
Consulting employees not only mitigates your legal risk but is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.
- What if we are accused of breaching the government workplace safety guidance?
You could face a claim from an employee or third party (such as a visitor or contractor) who claims to have suffered injury as a result. This might be a claim that the employee has contracted Covid-19, but it could also be a claim that they have suffered some other kind of injury such as stress-related illness. Employees might also refuse to come to work
In serious cases, you could face a criminal prosecution for breaching health and safety legislation by failing to take reasonably practicable steps to ensure employee safety. Directors, managers and officers can also be found guilty of any offence which was committed with their consent or connivance, or which is attributable to their neglect. Responsibility for prosecuting offences falls to the HSE or relevant local authority. They will generally not look to launch a criminal prosecution unless there is clear evidence that the health and safety breach caused serious harm and that there are public policy reasons to prosecute.
- Can we be liable if an employee contracts Covid-19 at work?
Yes, potentially, but only if the employee can show both of the following:
You, as the employer, were negligent in some way, or one of your employees acted negligently in the course of their employment so that you are found vicariously liable.
The negligence caused or materially contributed to the claimant contracting Covid-19.
In most cases, it will be difficult in practice for employees to establish on the balance of probabilities that exposure at work was the cause of them contracting the virus. They could have picked up the virus anywhere. Even if an employee does contract Covid-19 at work, you will not be liable unless they can also show that this was the result of negligence, i.e. a breach of your duty of care or statutory responsibilities.
So, to ensure that you are in the best possible position to defend a negligence claim, regulator investigation or criminal prosecution, you need to make sure that you – and your workforce – are complying with the government guidance and taking any additional precautions required. This includes monitoring how employees are behaving towards each other and intervening quickly if they are not acting appropriately. It’s not enough to put in place systems if employees are not complying with them.
- Do we need to make a RIDDOR report if an employee contracts Covid?
Covid-19 is now a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). However, the HSE has confirmed that employers should only make a report under RIDDOR when one of the following circumstances applies:
An accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence.
A worker has been diagnosed as having Covid-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
A worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent.
The reporting requirements apply only to cases of “occupational exposure”, that is, as a result of a person’s work. This seems to cover employees such as laboratory technicians, nurses, other health care workers and those involved with testing etc and has limited application to the UK workforce.
- What about insurance?
You should already have Employers Liability Insurance in place to cover the risk of claims from employees about injuries or illnesses suffered in the course of employment. Your public liability insurance should cover claims from visitors or customers etc. You should check the scope of your cover, and whether you have any specialist health and safety insurance in place, including claims against directors. Remember to keep your insurers up to date if any claims are threatened.
- What policies should we have in place?
You will need to revisit and probably expand your existing health and safety policy to cover your approach to controlling the risks presented by Covid-19. You’ll also need a process for handling employee complaints and concerns about health and safety.
Think about whether your existing homeworking, whistleblowing and disciplinary policies also need any amendments to ensure consistency with your new policies.
- Do employees have a right to be notified if a colleague has suspected or diagnosed Covid-19?
No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other employees. Try to balance these obligations by warning individuals who have been in contact with any suspected or confirmed case of Covid-19 without revealing the name of the colleague and, if that is not realistic, do not reveal any information any more widely than necessary.
- Are we legally responsible for an employee’s journey to and from work?
Employers do not have any statutory legal responsibility for an employee’s journey to the workplace. Health and safety legislation (such as the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999) covers only the risks which employees may be exposed to at work – not the risks they may face whilst travelling to and from work. The government guidance covers work-related travel, but not travel to and from work, although it does say that employers should stagger arrival and departure times to reduce crowding into and out of the workplace and provide facilities for alternative ways of travelling, such as by cycling.
However, in this unusual situation where the public health risks associated with using public transport are so significant, the courts might conclude that your implied duties of care, and to maintain trust and confidence, mean that you should take some account of the risks associated with an employee’s commute. In any case, leaving aside the legal position, commuting by public transport will be of very serious concern to your employees and the capacity of the public transport network is going to be very restricted – so there are good reasons to do what you can to ensure that employees can get to work, and can do so in the safest way possible. This could involve adjusting hours, providing extra parking and taking steps to enable more cycling. The government has issued guidance on safe travel which employees should consider before commuting.
In certain circumstances, employees have a statutory employment right not to attend a workplace if they have a reasonable belief that they are in serious and imminent danger, and it is less clear if this applies to the dangers of travel.
Adjusting hours and responsibilities to ensure safe working
Can we temporarily change an employee’s working hours to stagger working hours, for example from 9am-5pm to 8am-4pm?
This could certainly be done with the employee’s agreement. If it is not possible to obtain consent, you could argue that a temporary and relatively minor change of this sort comes within the employee’s implied duty to comply with a reasonable management instruction. The scope of this implied term is uncertain and you should be cautious about relying on it. You should also consider the individual’s particular circumstances and whether the change could potentially have a discriminatory impact on them.
What if an employee’s hours increase as a result of additional safety measures?
It is possible that some measures to enforce safe distancing and hygiene will result in the lengthening of an employee’s day because, for example, they need to queue to get access to changing rooms or carry out extra procedures. Some employees may be entitled to extra pay for these extra hours and it is particularly important to ensure compliance with national minimum wage legislation.