As lockdown restrictions are eased and the UK gradually returns to work, health and safety will be a key concern for employers. The Scottish Government’s position is that working at home remains the default where possible, but the opening of retail and hospitality sectors means many people will now be back in the workplace. This week, our blog looks at the general health and safety duties which apply to employers and particularly in light of coronavirus.
Under the Health & Safety at Work Act 1974, an employer must ensure, so far as reasonably practicable, the health, safety and welfare of all their employees at work. This also means that an employer must reduce the risk to employees so that it is “as low as reasonably practicable”. Similarly, employees also have a duty to take reasonable care of their own (and their co-workers') health and safety. This extends to co-operating with their employer on health and safety issues.
Under the Management of Health & Safety at Work Regulations 1999, an employer is obliged to undertake risk assessments. These should assess the risks to the health and safety of employees whilst at work, and also the risks to those who are not employed, but could be affected by the employer's operations, such as customers who will be on the premises. The employer must then put in place arrangements to address concerns flagged up in the risk assessment, in order to reduce the risks identified. Employers are also obliged to provide their employees with relevant information on the risks to their health and safety as identified by the risk assessment, and should consult with employees on such matters.
Risk assessments should address various risks which could arise in the workplace, and a new emphasis will understandably be placed on further combatting COVID-19. An employer should ask:
With COVID-19, employers should take particular care when assessing risks to vulnerable employees, such as pregnant women, workers over 70 and those with underlying health conditions. They should also be mindful of new risks which will now be present with visitors coming to the workplace, communal areas, meeting rooms, and other locations where two or more people could be in close proximity.
Some general steps which employers should consider taking include:
Given the requirement to consult with employees on health and safety issues, employers should be doing so on the risks COVID-19 presents in the workplace, particularly given the unprecedented nature of the situation and the way it may affect individuals. It is advisable to keep track of the extensive government guidance on the issue and record what guidance was being followed when implementing measures, so that this can be shown should any issues arise.
Employers also have obligations generally under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) to report certain types of incidents in the workplace. This obligation covers cases of, or deaths from, COVID-19 which are a result of occupational exposure. A report must be made where:
Therefore, if an employee or worker is diagnosed with COVID-19, their employer must consider all the information available and whether there is reasonable evidence that they contracted the disease as a result of exposure at work. If there is, a report must be made. This might be difficult to assess in the case of one individual who may have been exposed to the virus in numerous possible locations, but care should be taken if that person has been in the workplace to take steps to avoid transmission to others or ensure others get tested, as if colleagues are then found to have the virus this is more likely to require reporting.
If employees are working from home, this becomes their workplace and the health and safety regulations will apply to their home workstation. This may not be something which had previously been on the radar for businesses, but should be borne in mind when carrying out risk assessments for the workplace as a whole. How duties are fulfilled will depend on the employer, but this could involve asking employees to carry out an assessment of their own home workstation and flag any issues. They may need to be provided with additional equipment if their home working arrangements are unsuitable.
Generally, an employee's travel arrangements for getting to and from the workplace would not be covered by a health and safety risk assessment. However, in light of COVID-19 the method by which employees travel to work is an increasingly relevant issue, as travelling on public transport could place them and their colleagues at greater risk. We would generally suggest that this does not mean employers should be mandating how employees travel, but seeking to identify and minimise any risks.
Steps should be taken to find out how employees intend to travel and consider any risks arising from this, and whether these risks can be mitigated by workplace arrangements. For example, if an employee uses public transport to get to work, could these employees alter or stagger their working times to avoid rush hour, thereby reducing their contact with others? If employees have elected to cycle to work instead, are there facilities for them to store their bikes safely?
There are various ways in which breach of health and safety duties can lead to claims by employees (or others). For example, an employee may make a personal injury claim if they are injured at work as a result of their employer’s failure to comply with their health and safety duties and implement a safe system of work. There can also be significant criminal penalties in certain circumstances.
If an employee raises concerns about health and safety, it is possible that they are protected as a whistleblower and any detrimental treatment they receive as a result could result in an employment tribunal claim. It is possible that we may see such claims in future where employees have raised concerns about their employer’s handling of COVID-19 in the workplace. It is therefore prudent for employers to ensure they are seeking to comply with their duties in relation to health and safety.