With the end of lockdown approaching, and as businesses start to allow staff to return to work, it is tempting to rush back into the office. However, is this a good idea?

We take a look at the implications that COVID-19 has had on the workplace, including:

  • Employer obligations of health and safety and practical steps employers can take to minimise risks of COVID-19;
  • What rights employers have in respect of making staff return to work;
  • Employer liability and health and safety.

Please note that the law in this area is still developing and the guidance is changing. We will attach some useful links at the end of this article that can provide more detail and advice.

Employer Responsibilities

An employer has a 'duty of care' and is legally obligated, under The Health and Safety at Work Act 1974 and other legislation to do everything that is 'reasonably practicable' to protect the health and safety of their employees, workers and those affected by their operations (e.g. clients, customers and visitors to the workplace.)

The reasonable practicability of reducing the risk to employees will depend on the risk vs the cost, time and difficulty of the measures that are necessary to avoid or reduce the risk in question. The risk also has to be a real risk, and not a hypothetical one.

An employer should provide training and instruction, as well as supervision, of staff. If there are still risks of injury due to this disease, the employer should consider providing staff (for free) with Personal Protective Equipment (PPE). The Health and Safety Executive (HSE) gives some examples of PPE, which include safety visors, gloves and respiratory protective equipment. If PPE is provided, the employer should teach staff how to use it properly and record this training in written record logs.

However, PPE is a last resort and employers should carry out 'risk assessments' which will identify the hazard and level of risk of work activities. Based on that, employers can take steps to reduce the risks of COVID-19 in the workplace. We outline some steps employers can take below.

Practical Steps for Employers

In conjunction with following health and safety laws and the government guidance, employers may want to take some of the following steps to ensure the workplace is safe:

  • Make sure they complete risk assessments regularly and that the assessments are in line with guidance from Public Health England and HSE
  • Carry out mental health assessments for staff working from home to prevent the development of work-related stress
  • Make sure there is an area for staff to wash their hands with soap and hot water,
  • Provide hand sanitiser and tissues to staff
  • Deep clean all public and communal areas, with particular emphasis on facilities that are frequently used by staff such as screens, photocopiers and door handles
  • Implement social distancing policies, making sure staff are at least 2 metres away from each other at all times, and consider only allowing one person to use the kitchen and bathroom facilities at a time
  • Make sure all staff contact details are up to date
  • Keep staff informed of all actions being taken to reduce COVID-19 risks
  • Encourage staff to work from home if possible, and keep in touch with those working from home regularly to ensure they do not feel isolated
  • For those working from, make sure they have their computer set up correctly and encourage them to take regular breaks from their screen
  • Provide information and training to staff and make sure staff are aware of policies they should be following (e.g. sickness and absence policies and Government guidance)
  • Discuss staff concerns and whether you can implement some of their recommendations
  • Consider introducing some form of Employee Assistance Programme to allow staff to access support and counselling services
  • Coordinate with Trade Unions and employee health and safety representatives. This is particularly important because the law in this area is uncertain and Unions may be able to negotiate a COVID-19 agreement which can make the situation more certain
  • Once risks are identified in the risk assessments, employers should take reasonably practicable steps to reduce and eliminate the risks, such as introducing distancing measures or limiting the number of staff/customers in the premises
  • Consider increasing your employer liability insurance to cover the potential rise in health and safety related claims, which we will discuss in more detail below

As this is a very uncertain time for both employers and staff, it is important that employers keep in touch with staff and make them feel secure. This will enable a smoother transition back into work and prevent any potential claims for being brought against the employer. Below we take a look at what happens if an employee or worker refuses to come back to work.

Returning to Work

Staff should come back to work unless they have been told to self-isolate in accordance with government guidance. If the employee or worker has been told to self-isolate, then the employer should consider the applicability of their internal sick pay policy and sickness absence policy also whether the employee or worker qualifies to be paid under their contract.

The employee or worker may also qualify for Statutory Sick Pay (SSP) as the new COVID-19 Regulations have been amended, so that individuals who are unable to work because they have been advised to self-isolate may be eligible for SSP.

If an employee or worker has not been told to self-isolate but they do not want to come back to work, then the ACAS guidance suggests that employers should listen to any concerns staff may have, and if they are genuine, then the employer should try to resolve them. One option would be for the employer to offer the employee or worker a flexible working arrangement, or to agree that the member of staff takes some time off, either as paid holiday or unpaid leave. However, there is no obligation on an employer to agree.

If you agree to flexible working, then remember that the change to the contractual terms is permanent unless you agree that it will be temporary. However, flexible working is not possible for everyone. This is why employers may wish to negotiate a return to work plan with Trade Unions, as this may allow for a smoother transition back into work.

Employers should also bear in mind discrimination law when making decisions, for example, as some workers with underlying health conditions will have additional protection under disability discrimination law. It is important that all staff are dealt with fairly and reasons for decisions are recorded clearly. Some particularly vulnerable groups will be:

  • Those over 70,
  • Those under 70 but with underlying health conditions,
  • Pregnant women.

Finally, if an employee or worker unreasonably refuses to attend work, and cannot work from home, then you may want to consider disciplinary action. However, if an employee or worker has a 'reasonable fear' of returning to work because of a health and safety risk, they may be justified in refusing to return to work. Therefore, any disciplinary action should be exercised cautiously. If you do proceed to taking disciplinary action, then you need to make sure that you deal with all staff consistently and consider the individual circumstances and reasons for the refusal to return in order to minimise any chances of a claim being brought against you.

Employer's Risks and Liability

If you fail to protect your employee or worker's health, e.g. by failing to fulfil your legal obligations under health and safety law, then there is a risk:

  • That an employee or worker may be justified in refusing to return to work if they have concerns about their health and safety. If you end up dismissing them or subjecting them to a 'detriment' (e.g. disciplinary action), then that employee or worker may have a claim
  • That an employee or worker may be able to report you to the HSE and be protected for whistleblowing, and you may face large fines and potential prosecution by the HSE for not complying with your legal obligations
  • There is a risk of a discrimination claim by someone who is vulnerable, for example, a pregnant woman
  • An employee or worker who catches COVID-19 while working may be able to bring a personal injury claim against you. An employer cannot rely on the argument that PPE was unavailable as a defence

Aside from the more obvious risks, one important issue is that employers will be holding more personal data than before, such as employee health data, which means there is more risk of mishandling said data. Employers should consider whether they need all the data they are actually requesting and will have to hold and protect, or whether some of it will be of little assistance.

Of course, on top of potential legal claims and fines, there will be legal costs in defending the claims, as well as managerial costs and a negative impact on reputation. The latter is particularly important right now as employers are in the spotlight, with people watching how different employers' transition into working from their premises again.

Summary

Clearly it is important that employers approach return to work with caution. At the very least employers should comply with all local government guidance, as well as carry out in depth risk assessments. The difficulty however is that not much is known about COVID-19, with many still unsure of its origins, and therefore it is difficult to confidently implement safety measures. Employers may wish to get in contact with HSE directly for more information and speak to Trade Unions to plan returns to work.

Employers can minimise the risk of successful claims by monitoring and implementing a safe system of work, keeping in touch with their staff to maintain trust and confidence levels and having a valid insurance policy that will cover any claims should they arise.

The government guidance remains that if it is possible for staff to work from home then they should continue to do that. It is unlikely that until a vaccine is developed staff will be expected to return to work full time. Now may be a good time for employers to consider whether working remotely is the new normal, and whether it can be a concept that can be incorporated into their future plans.

Useful links

As mentioned previously, you may find these links useful for further information:

Please note: This information was correct at the time of writing.