Life After Lockdown: How can staff return to work safely?

Employers have a legal obligation to provide a safe system of work and to implement it under the Health and Safety legislation, as we set out in a recent article https://elyplace.com/life-after-lockdown-is-it-safe-to-go-back-to-work/. There has been a lot of Government guidance issued following the easing of lockdown and the statement by Boris Johnson that certain industries should look to returning to work.[1]

Here we consider the practical steps employers may want to consider as part of their approach to creating, so far as possible, a Covid-19-safe workplace.  The Government has issued different guidance in relation to different workplaces including construction, offices, factories, plants and warehouse, labs, hospitality, and shops as well as education and healthcare, and employers should consult those guides in relation to the specific issues that arise within their workplace [give reference?]. Bearing in mind that every workplace is different, there are some key themes which should be considered in every workplace.

  1. Update your risk assessment

Risk assessments are the fundamental building block of making a workplace safe.  Pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999, every employer, and indeed self-employed person, has an obligation to carry out, and keep under review, a suitable and sufficient risk assessment. This requires an employer to consider what risks there are within the workplace which could cause illness or injury, how likely it is that someone could be harmed and how serious the risk, and following on from that, what steps could be taken to eliminate or control the risk.  In terms of Covid-19, relevant questions are likely to include: can social distancing of two metres or more be maintained in the workplace? Where are places with a practical risk of transmission, such as door handles or shared equipment or shared kitchen areas?

  1. Stop, look and listen

Once a sufficient risk assessment has been carried out, look and listen. Consult your employees and share your risk assessment and proposed steps to make the workplace Covid-19-secure as far as reasonably practicable. If there is a union, consult with that union. Where there are more than 50 workers, the results of the risk assessment should be published on the employer’s website. In the absence of collective representation, share your risk assessment and proposed steps and discuss it with your employees. Listen to any concerns that they raise as they may well think of things that simply did not occur to the employer.

  1. Preach and practice good hand hygiene

As has been Government policy from the very beginning of the pandemic, handwashing is still seen as central and at the forefront in the fight against Covid-19.  Employers should be encouraging their staff to follow the Government’s guidance on hand washing and hygiene (perhaps putting up posters suggesting their own 20 second-long songs rather than Happy Birthday!) and should ensure that the following practical steps have been taken within the workplace:

  • providing hand sanitiser around the workplace, in addition to washrooms and entrances and exits;
  • frequently cleaning and disinfecting objects and surfaces that are touched regularly. Obvious candidates include door handles, printers and photocopiers;
  • enhancing cleaning for busy areas;
  • setting clear use and cleaning guidance for toilets;
  • providing hand drying facilities – either paper towels or electrical dryers;
  • Limiting or reducing shared use in the workplace, for example, by not having shared workstations and limiting use of shared kitchen facilities by insisting employees use own mug/glass and plates/utensils.
  1. Crowd control, part one – help people to work from home

The current Government guidance is that you should return to work only if you cannot work from home.  It therefore is of no surprise that the Government urges employers to take all reasonable steps to ensure employees and workers are able to work at home.  Although consideration should be given to enabling working from home where possible in all roles, employers should be proactively enforcing this in relation to staff who fall within the extremely vulnerable or vulnerable category by reason of underlying health conditions, and who are therefore likely to be disabled within the statutory definition under the Equality Act 2010.  Employers should not be inviting employees or workers who meet these criteria to return to the workplace.

Practical considerations around helping people to work from home will include the following:

  • discussing home working arrangements;
  • ensuring they have the right equipment, for example remote access to work systems. It may be that this should also include assistance towards the provision of an adequate workstation;
  • including them in all necessary communications;
  • looking after their physical and mental wellbeing, which again comes back to actively staying in touch and arranging virtual meetings as well as 1:1 meetings, so that staff working from home do not become isolated.
  1. Crowd control, part two – maintaining social distancing

If staff are physically to return to the workplace, consideration should be given as to how social distancing of two metres or more can be complied with in the workplace.  Practical options include:

  • putting up signs to remind workers and visitors of social distancing guidance;
  • avoiding sharing workstations;
  • using floor tape or paint to mark areas to help people keep to a two-metre distance;
  • arranging one-way traffic through the workplace if possible;
  • switching to seeing visitors by appointment only if possible.

But what if it is not possible to maintain social distancing within the workplace, because it is, for example, too small?  In those circumstances, the employer needs to look at minimising the risk within the workplace and practical options to do so include:

  • considering whether an activity needs to continue for the business to operate;
  • keeping the activity time involved as short as possible;
  • increasing the frequency of handwashing and cleaning of areas;
  • using screens or barriers to separate people from each other;
  • using back-to-back or side-to-side working whenever possible;
  • staggering arrival and departure times;
  • reducing the number of people each person has contact with by using fixed teams or partnering or cohorting so that employees are only interacting with a small number of colleagues with the same start and finish times.

Moreover, the social distancing guidance will need to be enforced. Remember it is the employer’s duty to implement, as well as devise, a safe system of work so consideration should be given to amending disciplinary policies and grievance policies to include breaches of hygiene/social distancing.

None of the above is going to reduce to zero an employer’s risk of claims being brought against it under the health and safety provisions at section 44 or section 100 of the Employment Rights Act 1996, or whistleblowing claims based on health and safety concerns. Nor will the above reduce an employee’s anxiety about returning to the workplace after lockdown.  But the guidance is good practical guidance which, if complied with by employers, would tend to suggest to both their employees and tribunals that they are taking all reasonable steps to make their workplace Covid-19-secure as far as it is reasonably practicable to do so.

[1] See

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 

www.gov.uk/guidance/working-safely-during-coronavirus-covid19/5stepstoworkingsafely

 

1st June 2020