Key government announcements in the last few days have outlined the possibility of certain workers returning to work from now on, but also the extension of the CJRS in its current form until 31 July and then for a further 3 months on a cost-sharing basis, with part-time working permitted.
The extension of the CJRS will give many employers further breathing space and full details of the new arrangements are expected before the end of May. However, the need to make plans for workers to return to a very different working environment will soon affect many employers and in this bulletin we take a first look at some of the legal aspects of the Government’s new guidance on working safely during Covid-19.
The work settings covered in the initial batch of guidance notes are:
- Construction and other outdoor work
- Factories, plants and warehouses
- Labs and research facilities
- Offices and contact centres
- Other people’s homes
- Restaurants offering takeaway or delivery
- Shops and branches
Further guidance notes are expected in the coming days and weeks.
A Covid-19 risk assessment will be mandatory for all employers and is a key part of any return to work plan. For those with 5 or more workers, the risk assessment must be in writing; for those with more than 50 workers, it should be published on the organisation’s website.
It will be advisable to consider within the risk assessment all of the arrangements set out in the guidance for the relevant work setting. However, employers should also think about other relevant guidance, such as sector specific guidance issued by trade bodies or trade unions.
Consultation with all workers on health and safety measures is already mandatory under the Health and Safety at Work legislation, but is often overlooked in organisations where health and safety is not a dynamic or complex aspect of the workplace.
Consultation about safe working measures will be required in many workplace settings. It should take place with representatives of recognised trade unions and/or non-union employee representatives elected by the workforce. Consultation may take place with employees direct, but this is often impractical for larger organisations. Employee representatives must be provided with certain information, facilities and time off.
Consultation should take place when measures are proposed, so at the time the risk assessment is being done, and on a continuing basis. There is no specific timescale for health and safety consultation as it is an ongoing obligation.
Failure to consult does not give rise to claims by employees, but is an offence which may be prosecuted by the Health and Safety Executive.
No compulsory return
The Government’s guidance states that employers should take preventative measures to reduce risk to the lowest reasonably practicable level. However:
- employers should use every reasonable effort to facilitate working from home; and
- no worker can be compelled to return to an unsafe environment.
If home working is not possible, the employer should make every reasonable effort to comply with the social distancing guidelines. Where this is not possible, the employer should take all reasonable mitigating actions to reduce the risk of transmission within the workplace.
Effective prior consultation will reduce the risk of large numbers of employees refusing to return to environments they consider unsafe.
Employees can be protected in law from detriment and dismissal if they take reasonable steps to protect themselves or others from serious and imminent danger e.g. staying away from an unsafe work place. Health and safety representatives have additional protection.
Although the specific recommendations for each workplace setting vary to some degree, there are common themes, including:
- physical separation of the work force using screens, signage and markers, one-way systems, different entrances and exits, shift systems, staggered start and leaving times, avoiding physical meetings;
- additional cleaning and hygiene measures;
- limits on work-related travel; and
- management of visitors and deliveries.
The use of PPE is not recommended as a primary response, unless it is already in use in the workplace. This of course assumes that workplaces have already made appropriate decisions about whether or not to use PPE.
For further discussion of the above issues, please register for our free webinar at 10.00am on Wednesday 27 May. Click here for details.
For detailed advice, please contact Blair Adams or get in touch with your usual Winckworth Sherwood contact.