How To Manage A Safe Return To Work In The UK? FAQs For Employers

• Published date: 02 June 2020
• Author: Mr Vince Toman (Lewis SIlkin) and Shalina Crossley (Lewis Silkin)
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employee Rights/ Labour Relations, Whistleblowing, Government Measures, Employment and Workforce Wellbeing
• Law Firm: lus Laboris

UK employers are facing many employment law issues as restrictions begin to be eased and more employees can come back to work. These FAQs cover employers' health and safety obligations, medical testing, contact tracing and adjusting hours and responsibilities.

The government has recently announced new guidance to enable UK employers to start to bring those staff who cannot work from home back to work:

• The government has released eight separate guides on working safely during coronavirus. These cover a range of different types of work: construction and other outdoor work; factories, plants and warehouses; homes; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; and vehicles.
• This followed the earlier publication of the government's roadmap for leaving lockdown. Step one begins on Wednesday 13 May, when sectors of the economy that are not forbidden from opening have been told they should do so. Only workplaces such as hospitality and non-essential retail must remain closed. However the broad advice remains that anyone who can work from home should continue to do so and offices are likely to remain closed in the short term. Employers should not feel pressured into reopening until they are sure they can do so safely.
• Employers need to do a Covid-19 risk assessment as soon as possible. All employers should consider publishing their risk assessment on their website and the government expects all employers with more than 50 employees to do so.

The following are answers to frequently asked questions about the health and safety issues which arise when employers are re-opening their workplaces. See also our FAQs on staffing decisions when reopening workplaces which cover specific issues in relation to deciding which employees should stay at home and what happens if employees do not want to return to work. In addition, our FAQs on furloughing employees deal with all aspects of the government's Coronavirus Job Retention Scheme

Health and safety at work

If we open our workplace, what steps must we take to make it Covid-19 secure?

All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, employers must take the following steps:

• Carry out suitable and sufficient risk assessments to identify the risks. Risk assessments should also look at different groups of workers (e.g. vulnerable workers), for whom you may need to take extra health and safety measures.
• Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.

To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the government's guidance on working safely during coronavirus mentioned above.

The guidance is not the law but is nonetheless likely to be taken as the minimum you need to do to be compliant with the law. It must be read in conjunction with other health and safety laws and regulations, and any advice produced specifically for your sector by industry bodies.

Must we publish our risk assessment?

The law already says that significant findings from risk assessments must be written down if you have more than five staff. The guidance now also recommends that you publish your Covid-19 risk assessment on your website, and that all employers with over 50 workers will be expected to do so.

Do we need to do a risk assessment even if we are not reopening because everyone is working from home?

Yes, but it should concentrate on the homeworking risks. You can update it (after consultation) in due course to reflect your plans for re-opening.

How do we go about doing a satisfactory risk assessment?

The Health and Safety Executive (HSE) provides general guidance on how to do a risk assessment, which would need to be adapted for Covid-19 using the appropriate workplace guidance for your particular environment. In summary, the HSE recommends taking the following five steps:

• Identify the hazards in your workplace.
• Decide who might be harmed by those hazards and how.
• Evaluate the risks and decide on measures you can implement to minimise the risks.
• Record your findings and implement them.
• Review your risk assessment and update it as necessary.

What responsibilities do our employees have for their safety?

Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It is therefore important for you to educate and train your staff on the practices and policies you have decided to adopt.

Do we need to do any more than the government guidance as regards our staff?

Yes, potentially. You need to assess the risks presented by your own workplace to your own employees, as well as contractors and visitors, and you may need to put in place additional controls or measures to mitigate them. The guidance is not the same as the law so your legal duties will continue alongside, and in addition to, the guidance.

Should we be consulting employees or their representatives about the health and safety aspects of reopening or re-occupancy plans?

Yes. If you recognise a trade union, you should consult with your union safety representatives. Where workers are not already represented by union safety representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety, and in particular, the introduction of new measures that could substantially affect their health and safety. The HSE has produced guidance about this here and here. It is a criminal offence not to comply, albeit not the type of offence that the HSE has actively prosecuted in the past. Employees do not themselves have any kind of civil remedy for failing to be consulted over health and safety...