Under UK law an employer has both a common law and statutory duty to take reasonable steps to ensure the health and safety of their employees. In order to comply with its duties an employer must assess its workplace and take reasonable action to reduce risk to the lowest practical level by taking preventative measures. In assessing whether the employer’s actions were reasonable a court will take into account current government guidelines in assessing the appropriate standard of care.
A retailer that does not operate in accordance with the latest government guidance on managing workplace risk therefore leaves themselves wide open to claims.
As at the time of writing, the government’s publication ‘Keeping workers and customers safe during COVID-19 in shops and branches’should be a retailers go-to guide and employers in hospitality should refer to Keeping Workers and customers safe during COVID-19 in restaurants, pubs, bars and takeaway services.
The overriding message remains the same - employees should work from home wherever possible. Serious consideration should be made as to whether an employee needs to attend your business premises – if they do not and they contract COVID-19 then it could be argued that you failed to satisfy your duty of care. This is especially relevant to staff that are not customer facing – do you really need them in the workplace?
For customer facing staff it really comes down to numbers and space – how many staff can you accommodate in addition to customers and still comply with the two metre social distancing requirements?
From 1st August, clinically extremely vulnerable individuals (those that have been ‘shielded’) are permitted to return to the workplace providing COVID-secure guidelines are in place but should work from home wherever possible. If they cannot work from home, the employer should offer the option of the safest available on-site roles, enabling them to maintain social distancing guidelines (2 mtr, or 1 mtr with risk mitigation where 2 mtr is not viable, is acceptable), and the best approach may be for them to take up an alternative role or adjusted working patterns on a temporary basis.
For employees considered to be in a vulnerable group (but not shielded) there are no additional controls that need to be implemented, but the government’s guidance is that they should ‘stay at home as much as possible’. Given that they are at a higher risk it would be prudent to consult with them individually on their return to work and ensure that they are aware of the risk management controls that are in place and consideration should be made to giving them the safest work activities. A similar approach is suggested for employees who live with shielded individuals.
Also don’t forget to stress to returning employees that if they are showing symptoms they need to self-isolate.
In order that employers appreciate the personal issues that may be affecting individuals that are due to return to work and in turn that those individuals understand the changes that have been made to their working environment the CIPD have created a return to work conversation record that can form the basis of your conversation with each employee prior to their return.
Whenever choices are made between employees always ensure that your selection is based on objective criteria and therefore free from bias that could be considered discriminatory.
A critical step in satisfying your duty of care is to undertake a COVID-19 risk assessment.
Under UK law all employers are required to carry out health and safety risk assessments and this should be done in consultation with your employees and documented in writing. Employers with less than five employees are not required by statute to have a written record, but given the current state of risk we would recommend that they do.
A failure to undertake a risk assessment is not only a breach of your duty of care to your employees but also a breach of your statutory health and safety responsibilities which can result in criminal sanctions.
The Health and Safety Executive have updated their online tools to include a COVID-19 specific risk assessment which includes the following review areas to ensure you have measures in place:
You will note from the above list that your risk assessment should also include a review of your homeworkers. Homeworkers may have unsuitable working conditions which can lead to musculoskeletal issues, and also by working in isolation may be showing symptoms of anxiety and other mental health issues. Your risk assessment should therefore include ways for them stay connected.
You should work with your employees to complete the risk assessment and share the results once completed. The government guidelines also recommend that businesses publish the results on their website, and sets an expectation that this happens for employers with more than 50 employees.
Once completed all identified risks should be acted upon (see section below) and businesses should display a signed notice to convey to the public and their workforce that a risk assessment has been performed.
The actions you take following your risk assessment will very much depend upon what has been highlighted and the degree of risk that is posed, however it’s likely that they will include some of the following.
Communication and training materials should be finalised and circulated prior to your employees returning to work. Employers should also ensure that they keep their workforce, customers and suppliers informed and also ensure that their workforce have the means to raise concerns and that these are quickly acted upon.
As part of your focus on communication you should consider whether your work policies need updating, such as:
With regard to individual terms of employment if you are making any changes to an employee’s job, such as hours, then this should be agreed with them in writing. To ensure that you get their agreement it is advisable to consult with them beforehand so that they can appreciate the business need behind the request.
You should also prepare yourself for an outbreak. A key step in your preparation is to nominate a single point of contact (SPOC) who will act as the lead in alerting the local Public Health teams. The SPOC will be required to inform the Public Health team in the event that you have more than once case of COVID-19. Therefore it’s essential that you have procedures in place that can quickly identify employees in your workplace that are showing symptoms and take appropriate action. The most effective way to manage this is for employees to take responsibility to alert you if they are showing symptoms, or someone in their household has symptoms, whereupon your response will be to send them home to self-isolate (for between 10 to 14 days) with a request to get tested as soon as possible.
Under government guidance employees who have symptoms but have yet to have their infection confirmed are encouraged to alert the people that they have had close contact with during the previous 48 hours. If the close contacts include co-workers, the government guidance states that the individual may wish to (but is not obliged to) ask their employer to alert those co-workers. Any co-workers that are identified are not required to self-isolate but must avoid other individuals who are considered high risk and must take additional care when social distancing and being alert to symptoms developing.
Once a positive test result is confirmed the NHS Test & Trace Service (TTS) will ask the individual for details of the places that they have recently visited and the contact details of those people that they have been in close contact with. The TTS service will reach out to these individuals and request that they self-isolate for 14 days. If the TTS assess that the individual’s workplace is at risk of an outbreak then they will alert the local Public Health team who will then contact the employer. Employers have a duty keep a 21 day record of your employee attendances and shift patterns in order to assist with the Test & Trace process and should also have the personal contact details of each employee on record.
There is no doubt that during the next few months effective communication will be a key part in the success of getting your business back on track and will play a critical role in ensuring that you meet your duties as an employer.