Returning to work - health and safety legal considerations

If you’re considering returning employees to work following the coronavirus outbreak, you will be considering the health and safety implications. But where do you begin?

The starting point for employers is the statutory duty under the Health & Safety at Work Act 1974 (HSWA). Section 2(1) HSWA states:

“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

This is supplemented by government guidance for dealing with the COVID-19 pandemic but it is

important to remember that such guidance does not trump legal obligations and employers each need to assess the risks facing employees in their own organisations and set up and implement a safe system of work.

As always, employers also need to regularly review and manage their plans. It is not enough just to give an order and expect it to be followed or to put something in place and not expect circumstances to change. The employer must also police that measures and policies are followed.

Health and safety key steps

1. Assess the risks.
2. Set up a safe system of work in light of those risks.
3. Implement that safe system of work.
4. Continually review the system.

It is every employer’s duty to follow those steps, and at each stage an employer must do all that it reasonably can and be able to evidence that if needed. Of course, COVID-19 has introduced added complexity to the workplace, so we’ve put together a checklist for legal compliance.

Some of the legal duties overlap but working through this list will help your organisation to keep its health and safety measures on track.

The Management of Health and Safety at Work Regulations 1999

• Carry out a risk assessment of the coronavirus related risks at work and keep that assessment under review (regulation 3).
• Set up a system of safe work informed by the coronavirus risk assessment and then make sure it is carried out – if 5 or more are employed, this must be in writing (regulation 4).
• Carry out health surveillance on staff so that the business knows whether or not they are symptomatic (regulation 6).
• Appoint staff members to assist in setting up and implementing the safe system regarding coronavirus (regulation 7).
• Ensure that employees and others working on your premises have information on the risks and the steps that they must take to reduce or avoid the risk of contracting or passing on coronavirus (regulations 10 &12).

The Workplace (Health, Safety and Welfare) Regulations 1992

• Maintain and clean the workplace to guard against transmission of coronavirus (regulation 5).
• Ventilate the workplace (regulation 6).
• Rooms must have sufficient space for health and safety so that adequate distancing can be observed - currently 2 metres (regulation 10).
• Enable employees to circulate in the workplace safely away from each other (regulation 17).
• Provide suitable and sufficient toilets and washing facilities for regular handwashing (regulations 20 & 21).

The Personal Protective Equipment at Work Regulations 1992

If you can’t adequately control the risks of health and safety in your workplace, e.g. by maintaining 2 metres distance, then suitable personal protected equipment (PPE) must be provided. The PPE must:

• take account of the risks and be suitable ergonomically for the work;
• fit and control the risks of infection (regulation 4);
• be assessed as suitable (regulation 6); and
• be maintained and replaced as appropriate (regulation 7).

If more than one piece of PPE is worn it must be compatible with other pieces (regulation 5). The employees must all be provided with training in its use (regulation 10).

The Control of Substance Hazardous to Health Regulations 2002

Working on the basis that COVID-19 would be viewed as a biohazard under these regulations, first carry out a risk assessment (regulation 6) and prevent exposure to coronavirus.

If that’s not reasonably practicable, adequately control exposure:

• Re-design work systems.
• Re-organise the workplace and ventilate it adequately by:
  • reducing employees exposed to a minimum number;
  • reducing the level and duration of exposure; and
  • suitable maintenance such as cleaning.
  • If there are no other means of controlling the risk then provide PPE.
• If not reasonably practicable to control the risks in other ways then provide:
  • warning signs; and
  • hand-washing facilities (regulation 7).

You must also monitor exposure to coronavirus at the workplace which may simply be keeping a record of those self-isolating or who are symptomatic and/or who have tested positive (regulation 10).

What to consider in terms of the approach to expressing risk?

Employers should follow as a minimum the HSE guidance on carrying out risk assessments that are specific to their workspaces.

1. How can the risk be avoided?
2. What are the risks of people working together and how can these be addressed and controlled?
3. Could infected colleagues or customers be transmitting the virus?
4. Are there aerosol or hygiene infection risks?
5. Are additional protections required for particular groups within your workforce (together with any cross-over considerations under the disability discrimination provisions of the Equality Act 2010 including the duty to make reasonable adjustments)?

Consultation considerations

The normal duties of consultation on health and safety matters still apply during the pandemic. Section 2(6) HSWA states:

"It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures."

Under the HSWA, the representatives may be appointed by trade unions as safety representatives from among the employees or may be employee appointed representatives.

If you recognise one or more trade union in any part of your business, then the trade union may appoint health and safety representatives. This will usually be agreed as part of the recognition agreement or with the assistance of ACAS.

No trade union health and safety representation

If there are employees who are not represented by trade union health and safety representatives then a different scheme applies.

Maybe your business does not recognise a trade union, or the trade union is recognised but no health and safety representatives have been appointed. You might simply have employees who are not part of the trade union.

If this is the situation, then you can either arrange for representatives to be elected from the employees or to consult directly with the employees themselves.

What to consult on

The key to what must be consulted about is in the HSWA.

Trade union representatives have duties under the HSWA and the Safety Representatives and Safety Committees Regulations 1977 also apply. Regulation 4(1) requires representatives to investigate potential hazards and dangerous occurrences in the workplace and any complaints raised by an employee.

Non-union representatives must be consulted in accordance with The Health and Safety (Consultation with Employees) Regulations 1996. Particularly relevant to COVID-19, Regulation 4 requires that consultation is undertaken about:

(a) The introduction of any measure at the workplace which may substantially affect the health and safety of those employees.

(d) The planning and organisation of any health and safety training he/she is required to provide to those employees by or under the relevant statutory provisions.

(e) The health and safety consequences for those employees of the introduction (including the planning thereof) of new technologies into the workplace.

Regulation 5 requires employers to provide relevant information that is necessary to enable representatives to participate fully and effectively in consultation.

Therefore employers will now be under a duty to consult with representatives (or in their absence) directly with employees about how to ensure the health and safety of employees as they return to work.

For further advice or support, please contact partner Tony McPhillips or any of our employment team.