Health & safety in the workplace

Under Health and Safety law, employers must ensure, so far as reasonably practicable, the health and safety of their staff at work and that persons not in their employment (such as third party contractors) are not exposed to risks to their health and safety.

A higher level of enforcement can be expected where an employer has failed to meet their obligations despite well-established standards and readily available guidance. The government has published extensive sector-specific guidance on making the workplace safe during the COVID-19 outbreak: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

It is of importance to note that where an employer commits a health and safety offence, individuals in management roles can also be found liable.

Employers must make a suitable and sufficient assessment of the risks not only to the health and safety of their employees but also to persons not in their employment arising out of or in connection with their business. There are also specific risk assessments required for persons in certain groups, such as women of childbearing age.

Employers must consult with employees directly or through a union-appointed or employee elected health and safety representative on the results of any risk assessments, the measures necessary to reduce the risk to as low as possible, and what employees should do if they are exposed to risk.

In the context of COVID-19, examples of risk assessments include those relating to:

• clinically vulnerable/extremely vulnerable employees
• visitors to office premises
• travelling to work
• communal areas/narrow corridors/staircases
• meeting rooms.

Depending on the results of these risk assessments, employers should put in place control measures such as social distancing, PPE, handwashing, deep cleaning and regular disinfecting, cohorting and staggering of working hours. Importantly, employers should monitor these control measures and make appropriate changes as and when necessary or where concerns are raised by employees or third parties.

Do an employer’s health and safety obligations still arise where its employees work from home?

The requirements to conduct risk assessments are still applicable. The Health and Safety Executive (“HSE”) initially suggested that it would not enforce sanctions for failure to carry out risk assessments at the start of lockdown due to the rate at which the pandemic escalated. However, more recently the HSE has reminded employers of their duties and published guidance on how employees can carry out their own self-assessments: https://www.hse.gov.uk/toolbox/workers/home.htm

Obligations in relation to keeping employees safe at work extend to the home if that has become the place of work, and claims arising from a failure to provide such a safe working environment are possible.

Can employers dictate how their employees travel to and from work?

An employer cannot mandate that an employee takes a different, less risky mode of transport, for example, walking or cycling to work instead of taking public transport. It is still a matter of choice for the employee as to how they get to the workplace and the government has not prohibited the use of public transport. However, an employee’s mode of transport can be taken into account when conducting a risk assessment and control measures put in place in order to mitigate any risk, such as staggering start and finish times so that the employee does not have to travel during peak times.

Government guidance states that employees should still work from home where possible. Can I ask my employees to attend the office?

While it is only guidance and therefore employers can choose not to follow it, safe and careful measures should be adopted, for example, the introduction of cohorts of staff attending the office at alternating times and spacing out workstations.

Employers should ensure that they document a clear thought process as to why it is necessary for staff to attend the workplace. In some cases, the dynamic of risk may have shifted so that a COVID-safe workplace is less risky than working at home when factoring in the mental health of those who have been isolating at home for a significant period of time.

The government has recently introduced the one-metre rule, but I have adapted the workplace according to the two-metre rule. Do I need to readapt the workplace?

Although the government has relaxed this social distancing measure, it has been qualified in that people should stay two metres apart wherever feasible and mitigate the risks at one metre where it is not. In any event, two metres is still safer and easier to justify if challenged from a health and safety perspective.

What are the risks to employers for failing to protect an employee’s health and safety?

An employee could potentially bring claims for whistleblowing as part of an Employment Tribunal claim, personal injury and/or under The Health and Safety at Work etc Act 1974.

We Can Help You

Our regulatory team at Ashtons Legal are able to assist and advise on any Health & Safety At Work issues, and in particular investigations conducted by the HSE. You can contact them through this website or please contact Tim Ridyard on 07484 924834 or email tim.ridyard@ashtonslegal.co.uk for specialist regulatory advice.

For specific advice for your business, please get in touch with our specialist Employment Law team through this website or by calling 0330 404 0778.

Our partners at Ashtons HR Consulting are also on hand to assist you.

This information is correct at 2.00pm on 11 August 2020.