Employers should not assume that a recent relaxation of rules is a sign that the Health & Safety Executive plans to take a light touch on enforcement, or that the risk of prosecution is any lower, warns Sally Roff

In light of the Government’s relaxation of the emergency measures in place and in response to the COVID-19 pandemic, for organisations that have or are planning to reopen their offices and premises and operate within the ‘new normal’, we sense a change in mood and approach.

At the outset of the pandemic, there was certainly a feeling that employers and employees were all in this together and needed to do the best they could to respond to this little known and invisible risk. The Health and Safety Executive initially stated on its website that it will take a flexible and proportionate account of risks around the pandemic.

Employers might have interpreted this to mean that it will take a light touch to enforcement and that there was a low risk of prosecution. However, and despite returning to work, the guiding principle for businesses is to safeguard the health and safety of the workforce and customers/clients, and the risk of infection and resurgence of COVID-19 remains.

We consider that, as workplaces reopen, there is every likelihood that the HSE will adopt more of a stringent approach for the following reasons:

• Employers have now had a number of months to understand
the risks of COVID-19 (although knowledge about the virus is still evolving) and to put appropriate planning in place;

• Guidance (although sometimes inconsistent and variable in the level of detail depending on industry sector) is available on HSE and Government websites;

• The public are concerned about the implications of lockdown being relaxed (49% of those asked in a TUC survey indicated that they were worried);

• Workers could report concerns to the HSE or other regulators if they are unhappy with the way that operations have been resumed or accelerated at the expense of safety;

• The TUC and other Unions have called for the HSE and other regulators to increase enforcement and to take a more interventionist approach. The TUC are calling for the HSE to act quickly to apply sanctions to employers including prosecutions who don’t take safety seriously; and

• The Government has allocated an additional £14 million to the HSE to enable it to respond to COVID-19 challenges.

The Government has issued guidance requiring employers to share with employees details of the measures they have taken in relation to COVID-19 and for businesses with more than 50 employees to publish the results on the business’ website.

A shift in the HSE’s approach was indicated in its press release on 2nd July 2020. The HSE emphasised that being ‘COVID-secure’ should be a priority for all businesses and means being adaptable to the current guidance. It will support businesses by providing advice and guidance but made clear that it will take action against employers that are not managing the risk, which can range from the issuing of enforcement notices to prosecution in the most serious cases. We are already seeing the HSE making regular enquiries as to the measures implemented by businesses to respond to the risk presented by COVID-19. We are also seeing the first regulatory investigations commence, relating to a failure to implement effective social distancing measures. We are being asked to advise on health and safety compliance in relation to the reopening of work places.

Health and safety, workforce and commercial considerations To protect the safety of employees and to protect their organisation from risk of prosecution, employers need to ensure the safety of employees and others affected by their undertakings in so far as it is reasonably practicable in accordance with their sections 2 and 3 of the Health and Safety at Work etc. Act 1974. As in all prosecutions for alleged HSWA failings, the burden is on the employer to demonstrate that it has discharged its duty.

A significant part of assessing COVID-19 risks is to look at individual fitness to work at the relevant location. The employer should be asking themselves a number of questions which will include, but is not limited to:

• Can the employee carry out his or her work at home?

• Should the employee be shielded (until 31st July) / or adjustments made due to underlying
health conditions?

• How will the employee get to work?

• Is the employee or any family member suffering with COVID-19 symptoms?

Employers will need to include some of these questions in the enquiries they make of contractors visiting their premises, as to how they are managing the risks of COVID-19.
If the employee is unable to work from home and is not fit or capable of working in the specific workplace location, alternative arrangements should be considered, such as redeployment to other parts of the business, unpaid or part paid leave or sabbaticals, furlough, and so on.

With regard to the general workplace arrangements, COVID-19 presents new challenges in relation to the implementation of new measures.

Employers should consider specific industry and sector guidance to ensure that appropriate control measures are in place and review other risks where working practices are changed. Such considerations include social distancing, physical workplace layout changes, travel arrangements, PPE requirements, and any specific requirement for testing and screening. It is important for businesses to record their decision making process by updating risk assessments and safe systems of work and communicate these changes to those affected and those responsible for supervision / monitoring adherence.

Managing and monitoring the effectiveness of the control measures as with any other identified workplace risk will also be key. Guidance from the Government and regulators is constantly changing, so employers should ensure that the systems put in place follow the specific guidance being issued for each sector and/or work activity, and provide guidance and training to line managers and supervisors and ensure control measures are being implemented.

Overall, we anticipate that some organisations will need to be innovative and change the way they work without the luxury of time to plan and to reflect on the impact of
these changes. It may also be the only way they can survive as a business in the current circumstances. It is therefore essential that any new risks within or created by changed business activities are identified and addressed.
The below list of questions is by no means comprehensive but gives an insight into the risks which, if not considered, an organisation may otherwise unwittingly expose itself and others to:

• Is there an appropriate number of staff with the required skills, and a sufficient level of supervision?

• Is additional or enhanced PPE required?

• Have new measures taken to address COVID-19 issues increased the risks in relation to other hazards or, indeed, introduced new risks? For example, in relation to manual handling a system which requires two persons to lift might need to be reviewed to give effect to social distancing, but could inadvertently increase the risk of injury if reduced. Where lone working is introduced to respond to the risk of COVID-19, the risks relating to lone working need to be assessed and control measures introduced.

• What are the operational risks arising from any changes in business activities and issues relating to practical implementation? For example, scarcity of resources, supply chain issues, and so on.

• Do you require services from others which if not available may have an impact on risk? For example, statutory inspections of equipment.

• Has the nature of business changed in a material way which might affect insurance coverage and licensing arrangements?

Ultimately, the message to businesses is that, although we live in uncertain times, this does not mean that we have to take an uncertain approach to working safely. Ensuring there is comprehensive, but targeted and clear guidance provided to employees, contractors and others should ensure that certainty in what is expected of them when returning to work is achieved, and therefore a healthy and safe work environment established.

This article was published in the Summer 2020 issue of CIR Magazine.

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