Employers’ Liability and easing of pandemic restrictions

The lifting of COVID restrictions across the whole of the UK is progressing and from 19th July we saw these removed for businesses in England, meaning the legal obligation for home working ends for most people. 

The Government has issued guidance for the workplace, but different guidance applies in England, Scotland, Wales and Northern Ireland. It is important for businesses to monitor the legal requirements and guidance across the UK and its different jurisdictions.

The principal features set out by Government cover six areas of workplace guidance. In addition, sectoral and specific guidance provided by industry bodies and regulatory authorities, such as Local Authorities and the Health and Safety Executive, should be monitored. For example, there is separate guidance for the leisure industry such as pubs, bars and nightclubs and similar close- contact services. Employers should be aware and follow the specific guidance relevant to their individual sectors.

The basic principles of health and safety laws for employers are to provide a safe place of work. This legal duty has practical consequences arising from the pandemic. Businesses are required to consider risk and what mitigations are appropriate.

With the lifting of previous restrictions in England on social distancing and working from home the six priority activities that have been given strong emphasis by Government are to:

  1. Undertake health and safety risk assessments that include (specific) risks from COVID-19. These should be inclusive, with measures, identifying groups of workers of whom employers need to take extra care. Implementation requires taking all reasonably practicable steps to minimise any risks identified.
  2. Provide adequate ventilation preferably through fresh air or mechanical systems.
  3. Clean more often.
  4. Turn people away with COVID-19 symptoms.
  5. Enable people to check-in at your venue.
  6. Communicate with and train staff.

The duty on businesses extends not only to employees but also to visitors to premises such as customers and contractors.  This often requires additional control measures to be factored into the assessment of risk and practical steps to implement.

The guidance(s) provided is not the law but is likely to be taken as the minimum required, to be compliant with it.  General practical considerations to be borne in mind include:

  1. Reducing the number of people with whom workers come into contact, by using, where possible and practicable, rota systems, fixed teams, barrier screens, using back-to-back or side-to-side working or assigning separate workstations.
  • Monitoring employee behaviour and intervening where there are failures to follow company rules.
  • Consulting employees (or representatives) about workplace safety plans. For example, the development of communication and training materials supplied to workers prior to returning to work.
  • Formulating an escalation or “speak up” process whereby employees can raise any concerns. Any concerns should be promptly investigated by appropriately trained representatives and any recommendations actioned.
  • Identifying those circumstances where PPE should be considered, for example in crowded/enclosed spaces, larger meetings or communal areas.
  • Reminding staff to maintain hygiene to reduce the spread of infection such as regular and effective hand washing and providing hand sanitiser.

These are examples of practical considerations to demonstrate how an employer can take all reasonably practicable steps to maintain a safe system of work. 

In the context of employer liability claims, 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. 

However, it is an offence to allow a person who should be self-isolating to come to work. There is clear and specific guidance provided on this which should form part of company policy on return to work. Clarifying specific dates, such as when COVID-19 symptoms were first experienced or confirmation of a positive test, is important as is re-testing before a return is permitted.

Employers may wish to consider other broader aspects such as COVID-19 certification, use of the NHS app, use of recent testing, as well as vaccination status. This is not without challenges as vaccination has not been made mandatory. It can, however, be recommended as part of a broader framework. For example, for essential workers in certain sectors as we have seen in the care industry.

It will continue to be crucially important for businesses to monitor the guidance which we can expect to be ever-changing due to sectoral, jurisdictional and regional variations. Within businesses, it should be the role of designated individual(s) to oversee this and update company rules where necessary. 

The use of COVID-19 specific risk assessments is crucial for the safety and welfare of employees.  Such assessments will also continue to be the legal cornerstone for regulatory compliance and improved claims defensibility to help minimise the financial and reputational risk to business.

Richard Salvini   |   Partner   |   Plexus Law

Author: Editorial Team

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