Coronavirus: What are the health and safety obligations of employers when back-to-work planning?

On Monday 11th May, the Government published ‘Our plan to rebuild: The UK Government’s COVID-19 recovery strategy ’, which has been dubbed its roadmap out of lockdown. This details the Government’s plans to lift the current English lockdown restrictions, in gradual phases, over the course of May to July 2020. This was followed by the publication of non-statutory sector specific guidance . As a result, many employers are currently contemplating what they need to do to improve the safety in their workplaces, to make them ‘COVID-19 Secure’, so that their staff can return to work. This article explores the basic health and safety obligations of employers, and considers some of the most frequently asked questions we receive from employers planning for a return to work.

What are an employer’s duties regarding the health and safety of employees?

All employers have a legal duty  to ensure, so far as is reasonably practicable, the health, safety and welfare of all of their employees. The duty, which includes the provision of information, instruction, training and supervision, extends to risks arising from:

• The nature of the work
• How the employer conducts its business
• Any supervision, training, instruction (or lack thereof)
• The plant, equipment, materials and substances used
• The condition of the premises
• The provision of welfare facilities

In addition, various regulations  impose specific statutory duties in respect of the health and safety of specific workers, and/or in specified situations. These include, but are not limited to:

• Women of childbearing age, pregnant women, and new mothers
• Young people (under 18s) 

As an occupier of premises, an employer also has a statutory duty to ensure the safety of employees and visitors on their premises.

Should every employer prepare a return to work risk assessment taking account of coronavirus?

Yes, it is the duty of every employer to take ‘reasonably practicable’ steps to eliminate identified risks. This means that, as a minimum, an employer must:

• Identify any hazards: identify what could cause injury or illness in the workplace
• Assess the risk: decide how likely it is that someone could be harmed and how seriously
• Eliminate or control the risk: take action to eliminate the hazard, or if this is not possible, to control the risk.

Although it is not compulsory for micro-employers, most employers should record these steps in a written risk assessment . Some employers may wish to create an entirely new risk assessment, whilst others may prefer to update an existing risk assessment to take account of the new risks that may arise from exposure to coronavirus within the workplace. In addition, the Government is encouraging employers to:

• Share the results of the risk assessment with the employees
• Consider publishing the risk assessment on the employer’s website (the Government expect all businesses with over 50 employees to do so)
• Display a COVID-19 Secure poster 

Do we have a duty to eliminate or control every risk posed by coronavirus?

The duty of every employer is to take ‘reasonably practicable’ steps to eliminate identified risks. What is ‘reasonably practicable’ will be a balancing act, taking into account:

• The degree of risk in a particular job or workplace
• The time, trouble, cost and physical difficulty of taking measures to avoid or reduce that risk

Any perceived or reported failure to take appropriate steps can give rise to investigation, interview and possibly prosecution by HSE  or the appropriate local authority. Safety investigations can be time consuming and uncomfortable, often highlighting diverse and unrelated concerns that lead to further questions. Safety prosecutions set a high bar; it is for the employer to prove that they have taken all practicable steps, almost a case of guilty until proven innocent.

A thorough and well thought out risk assessment provides a sounds basis from which you can respond to an investigation and defend any prosecution that might result.

Should we refresh our health and safety information and training because of coronavirus?

Yes, employers have a duty to provide information and training  to employees. This must be kept up to date, so that it reflects any changes in the risk profile or working practices (for example, when existing employees are exposed to new or increased risks, such as coming into contact with coronavirus at work). The training must be provided free of charge, during working hours, and should take into account the specific vulnerabilities of particular employees.

Do we need to consult with staff when planning for their return to work?

Yes, every employer has the legal duty to consult  with employees regarding health and safety matters. What is required depends on whether the particular workplace is:

• Unionised: in which case the employer must consult with trade union safety representatives
• Non-unionised: in which case the employer can consult with either elected employee safety representatives, or directly with the employees

The consultation must take place in good time, on matters relating to the employee’s health and safety at work, including but not limited to:

• The introduction of any measure at the work place that may substantially affect the health and safety of those employees (e.g. any new procedures, equipment or ways of working)
• The information that employees must be given on the likely risks and dangers arising from their work, measures to reduce or get rid of these risks and what they should do if they have to deal with a risk or danger

With one exception, which is explored below, breach of these duties does not confer any stand-alone right of action in civil proceedings. The HSE can investigate and enforce any breach of the duty to consult (although in practise they rarely do so). Further, a complaint by an employee that the employer has failed to consult them about health and safety could, depending on the circumstances, amount to a protected disclosure for the purposes of whistleblowing protection. If so, the employee will be protected from detriment, and any dismissal motivated by that disclosure would be automatically unfair (regardless of length of service), and any compensation is unlimited and can include an award for injury to feelings.

Do safety representatives have any special protection?

Yes, trade union safety representatives and elected employee safety representatives have special protection  afforded to them in respect of their duties. In particular:

• They have the right to take a ‘reasonable’ amount (as opposed to what is ‘necessary’) of paid time off to attend training and fulfil their functions
• The employer must provide the facilities and any assistance reasonably required for health and safety representatives to carry out their role
• They are granted special protection from suffering detrimental treatment or being dismissed for reasons relating to their safety representative duties (and any dismissal motivated by their being a safety representative would be automatically unfair, regardless of length of service)

Can we require staff to return to work if they feel it is unsafe to do so?

The answer to this depends on the circumstances, including:

• The degree of risk that individual employee faces (for example, whether they are required to shield themselves from coronavirus exposure)
• The amount of consultation and information the employer has had with its employees and workers in planning the safe return to work
• Whether it is in fact unsafe to return, or whether the employee is justified in reasonably believing that it is unsafe to do so

From the employer’s perspective, requiring an employee to return to work might be seen as a reasonable workplace instruction. However, in certain circumstances, an employer’s staff may have the legal right  to disobey that instruction and refuse to attend work, if they feel it is unsafe to do so. In particular, employees are protected from detrimental treatment, and any dismissal is automatically unfair (irrespective of length of service), if this is motivated by certain health and safety grounds, including but not limited to, the fact the employee:

• Brought health and safety concerns to the employer’s attention
• Left, proposed to leave or refused to return to their workplace, believing there to be serious and imminent danger
• Took, or was proposing to take, appropriate steps (determined by reference to all the circumstances, including their knowledge, and the facilities and advice available to them at the time) to protect himself or other persons from what he reasonably believed to be serious and imminent danger.

It is crucial to note that if the worker ‘reasonably believes’ that there is any serious or imminent danger, this means that they can leave, refuse to return or take appropriate steps to protect themselves and others. This means that the employee’s knowledge of the health and safety risks and the measures taken by the employer to eradicate or control those risks, are relevant in establishing whether the employee’s fear amounts to a ‘reasonable belief’. When considering an employee’s fear that a workplace is unsafe, one factor may be the disparity between the recommendations of the World Health Organisation and the UK Government’s guidance. We anticipate a rise in litigation exploring some of these issues in the coming months, and the trade unions are very likely to support such claims if necessary.

Further, the protection of the whistleblowing legislation  may be triggered if a worker makes a complaint to their employer (or in some limited circumstances to a third party), believing this to be in the public interest, that in their reasonable belief:

• There is a danger to the health and safety of an individual
• The employer has failed to comply with any legal obligation (for example, the duty to consult with employees regarding health and safety).

If deemed whistleblowing, this would in turn give the worker protection from detriment, and render any dismissal motivated by that protected disclosure an automatically unfair dismissal (meaning no qualifying period of service would be required). The compensation for a whistleblowing claim is unlimited, so the consequences of making a mistake can be costly.

Against this background, when faced with an employee who is reluctant to return to work due to health and safety fears, it is best practice for an employer to open up a constructive dialogue with the employee to establish what their concerns are and whether the employer has already taken (or can take) steps to alleviate those concerns. If an agreement can not be reached, then specific advice should be sought.

Do coronavirus cases have to be reported under RIDDOR?

The question of which cases of coronavirus have to be reported by the employer under RIDDOR  is currently a disputed topic of debate. These complex issues are explored in more detail in this article.

Can we ask employees to sign a waiver against injury or death from contracting coronavirus?

There is little value in asking an employee to sign such a waiver because various statutory provisions limit their effectiveness in the employment context. In particular:

• Any provision in an employment contract (or collateral agreement) is void  in so far as it would have the effect of excluding or limiting any liability of the employer, in respect of personal injuries caused to the employee by the negligence of persons in common employment with them (such as a manager, supervisor or colleague)
• An employer cannot, by reference to any contract term or other notice, exclude or restrict liability  for death or personal injury, and the employee’s agreement to, or awareness of, a risk is not of itself to be taken as indicating his voluntary acceptance of any risk

Can we require staff to take a coronavirus test?

Testing has so far been restricted, but it was announced  on 18 May 2020 that anyone who is symptomatic is now able to have a coronavirus test. However, the employee must give their consent to undertake a medical procedure, such as a coronavirus test, and it is unlikely that the employment contract will grant the employer the right to insist on such testing.  This means that the employer’s approach should be to encourage staff to engage in coronavirus testing when this is available, rather than trying to force them to do so. The introduction of work-place based coronavirus testing programmes is very complex and specific advice should be sought.
If an employer intends to retain or process records that relate to coronavirus testing, there are also data protection implications  that need to be considered, because health records are special category personal data, which means additional safeguards must be taken to protect it.

Please contact your usual Hill Dickinson contact or the author if you require assistance planning a safe return to work or have additional questions that we have not covered in this article.

For further updates and other articles discussing the impact of the coronavirus please view our coronavirus hub.