Health and Safety requirements upon returning to work
Last week the government announced their plans for a gradual easing of lockdown with many employees encouraged to start returning to the workplace. To support these recommendations, the government published guidance titled ‘Working safely during the coronavirus outbreak’. This was further supplemented by eight separate guides applying to specific types of workplace. These guides are as follows:
There already exists a requirement under the Management of Health and Safety at Work Regulations for businesses to have in place suitable risk assessments. This is to ensure that employees and others affected by the business are kept safe, and any risks are identified and minimised. The new COVID19 guidance (and any subsequent updates) will require employers to update their risk assessments to cover the new set of risks presented by coronavirus.
Templates and examples of risk assessments in different work environments are currently available on the HSE Website, but we would anticipate this being updated with more Covid19 specific examples in the coming weeks.
Requirements for employers
Employers must make their COVID19 risk assessment available to all staff, with those with over 50 employees also publishing this on their website. Employers should also consult with employees returning from lockdown/furlough, either directly or through unions/health and safety representatives (for larger employers).
In addition to making the risk assessment available to employees, employers should also look to ensure employees are fully aware of any measures put in place to protect health and safety. Employees should also be warned of the consequences of failing to adhere to these measures. In situations where employees have failed to follow the guidance issued by their employer and have placed others at risk, there is the potential for disciplinary action to be taken.
The Working Safely Guide highlights areas that all businesses should be focusing on, with further detail provided in the eight sector specific individual guides. All employers returning to the workplace will need to consider how to facilitate social distancing and reduce risk, considering matters such as:
The list above provides some of the more common considerations for employers. However, with each workplace presenting its own unique risks (even those within the same sector) employers should be carefully looking at all the measures they are able to put in place to reduce the ongoing risks from coronavirus.
What about employees not wishing to return to work due to concerns over health and safety?
Existing legislation exists to protect employees from dismissal or detriment if they have raised health and safety concerns, giving them recourse to the Employment Tribunal if action is taken against them (even with less than two years’ service). Regardless of their own view of the risks, employers should therefore proceed with extreme caution before automatically classifying a refusal to attend work as unauthorised absence for which disciplinary action can be taken.
Employers should look to investigate the employees concerns very carefully to establish whether they have a valid cause for concern. The employee would have to demonstrate that they held a reasonable belief that attending work would put them in ‘serious and imminent’ danger. Note that the employee must have a ‘reasonable belief’, but this is a fairly low threshold for employees meet.
Regardless of whether the employer believes that they have done everything required to keep their employees safe, an employment tribunal can still decide that an employee had a ‘reasonable belief’ of serious and imminent danger and is therefore protected.
Much will come down to this reasonable belief point, and although employers may be able to take further action, they should tread very carefully before doing so. Practically speaking, if an employee elects to stay at home due to their reasonable belief that they face a serious and imminent danger, they will be entitled to stay at home, but this will be unpaid. This may therefore make it a less attractive option for employees to choose.
Employers should exercise particular caution when an employee who is citing health and safety concerns is also likely to be disabled, pregnant or is in a category vulnerable to coronavirus.
As always, before taking action that could potentially lead to a claim being brought against the employer in the Employment Tribunal, it is worth seeking specific legal advice to ensure that any risks are minimised.