BLM's response to the latest Government guidance - working safely during Coronavirus -  issued late-pm on 11 May 2020 May

  • The government, in consultation with industry, has produced guidance to help ensure workplaces are as safe as possible.
  • These were published on the evening of 11th May, a day ahead of when the government said they would be published. They are subject to update.
  • These guidance closely follow the draft guidance published last week. 
  • These 8 guides cover a range of different types of work as follows:
    • - Construction and other outdoor work
    • - Factories, plants and warehouses
    • - Homes
    • - Labs and research facilities
    • - Offices and contact sectors
    • - Restaurants offering take away or delivery
    • - Shops and branches
    • - Vehicles
  • As the government point out, many businesses operate more than one type of workplace, such as an office, factory and fleet of vehicles. Therefore may need to use more than one of these guides as employers need to think through what they need to do to keep people safe.
  • As a general overview, taking the guidance for offices and call centres as an example, it deals with:
    • - The continued emphasis on continuing to work from home if possible
    • - For the workplace to be staffed by a minimum number of employees
    • - Identifying two categories of critical workers should be going into the workplace
    • - The focus on the workplace being populated by the minimum number of employees to operate
    • - How vulnerable workers should be treated
    • - The need to carry out a risk assessment
    • - The need to maintain the 2 metre social distancing rule
    • - Mitigating steps to be taken where this is not possible
    • - Specific social distancing measures employers should consider including:
      • Arriving and leaving work
      • Getting around the building and its common parts
      • Work stations
      • Meetings
      • Ventilation and cleaning
      • Enforcement

In terms of the detail of the guidance, it states as follows:

  • Businesses and workplaces should make every reasonable effort to enable working from home as a first option. Where working from home is not possible, workplaces should make every reasonable effort to comply with the social distancing guidelines set out by the government (keeping people 2m apart wherever possible).
  • Staff should continue to work from home if at all possible.
  • For staff working from home, employers should:
    • - Monitoring their wellbeing and help them stay connected to the rest of the workforce, especially if the majority of their colleagues are on-site.
    • - Keep in touch with off-site workers on their working arrangements including their welfare, mental and physical health and personal security.
    • - Provide equipment for people to work at home safely and effectively, for example, remote access to work systems.
  • There are specific rules for vulnerable workers:

- Clinically extremely vulnerable individuals have been strongly advised not to work outside the home. They are described as having very serious specific underlying health conditions such as cancer making them extremely vulnerable.

- Clinically vulnerable individuals, who are at higher risk of severe illness (for example, people over 70 or with some pre-existing conditions) have been asked to take extra care in observing social distancing and should be helped to work from home, either in their current role or in an alternative role. If workers falling under this category cannot work from home, they should be offered the option of the safest available on-site roles, enabling them to stay 2m away from others. If they have to spend time within 2m of others, employers should carefully assess whether this involves an acceptable level of risk. 

- Employers must take into account specific duties to those with protected characteristics, including, for example, expectant mothers who are entitled to suspension on full pay if suitable roles cannot be found. Reasonable adjustments should be considered for disabled workers.

- According to the guidance, particular attention should also be paid to people who live with clinically extremely vulnerable individuals.

  • For workers needing to self-isolate they should work from home where possible.
  • In terms of workers required to come into work they occupy ‘critical roles’ and fall into two categories:

- Workers in roles critical for business and operational continuity, safe facility management, or regulatory requirements and which cannot be performed remotely; and

- Workers in critical roles which might be performed remotely, but who are unable to work remotely due to home circumstances or the unavailability of safe enabling equipment.

  • Employers should plan for the minimum number of people needed on site to operate safely and effectively.
  • All employers regardless of size should carry out a risk assessment that addresses the specific risk of COVID-19. This must be in writing for employers with five or more employees.
  • Employers should share the results of their risk assessment with their workforce. If possible, they should consider publishing the results on their website. (in the case of all employers with over 50 workers the government requires them to do so).
  • All employers should display a notice in their workplace to show they have followed the guidance.
  • Employers have a duty to reduce workplace risk to the lowest reasonably practicable level by taking preventative measures.
  • 2 metre social distancing should be observed in the workplace wherever possible.
  • Where social distancing is not possible, employers should consider whether the activity needs to continue and consider mitigating factors such as:
  • Increased frequency of hand washing and surface cleaning.
  • Keeping activity time involved as short as possible.
  • Using screens or barriers to separate people from each other.
  • Using back-to-back or side-to-side working (rather than face-to-face) whenever possible.
  • Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).
  • If people must work face-to-face for a sustained period with more than a small group of fixed partners, then you will need to assess whether the activity can safely go ahead. No one is obliged to work in an unsafe work environment.
  • Employers should consider the following measures for coming in and leaving work:
    • Staggering arrival and departure times at work to reduce crowding into and out of the workplace, taking account of the impact on those with protected characteristics.
    • Ensuring handwashing upon arrival.
    • Providing additional parking or facilities such as bike racks to help people walk, run, or cycle to work where possible.
    • Limiting passengers in corporate vehicles, for example, work minibuses. This could include leaving seats empty.
    • Reducing congestion, for example, by having more entry points to the workplace.
    • Providing more storage for workers for clothes and bags. Using markings and introducing one-way flow at entry and exit points.
    • Providing hand washing facilities, or hand sanitiser where not possible, at entry/exit points and not using touch-based security devices such as keypads. 
    • Defining process alternatives for entry/exit points where appropriate, for example, deactivating turnstiles requiring pass checks in favour of showing a pass to security personnel at a distance.
  • In terms of getting around the building employers should consider:
    • Introducing more one-way flow through buildings.
    • Reducing maximum occupancy for lifts.
    • Providing hand sanitiser for the operation of lifts.
    • Encouraging use of stairs wherever possible.
    • Regulate use of high traffic areas. 
  • For work stations employers should consider:
    • Review layouts and processes to allow people to work further apart from each other.
    • Using floor tape or paint to mark areas to help workers keep to a 2m distance.
    • Only where it is not possible to move workstations further apart, arranging people to work side by side or facing away from each other rather than face-to face.
    • Only where it is not possible to move workstations further apart, using screens to separate people from each other.
    • Managing occupancy levels to enable social distancing.
    • Avoiding use of hot desks and spaces and, where not possible 
  • For meetings employers should consider:
    • Using remote working tools to avoid in-person meetings.
    • Only absolutely necessary participants should attend meetings and should maintain 2m separation throughout.
    • Avoiding transmission during meetings, for example, avoiding sharing pens and other objects.
    • Providing hand sanitiser in meeting rooms.
    • Holding meetings outdoors or in well-ventilated rooms whenever possible.
    • For areas where regular meetings take place, using floor signage to help people maintain social distancing.
  • For common parts of the office workplace employers should consider:
    • Staggering break times to reduce pressure on break rooms or canteens. Using safe outside areas for breaks.
    • Creating additional space by using other parts of the workplace or building that has been freed up by remote working.
    • Installing screens to protect staff in receptions or similar areas.
    • Providing packaged meals or similar to avoid fully opening staff canteens
    • Encouraging workers to bring their own food. Reconfiguring seating and tables to maintain spacing and reduce face-to-face interactions.
    • Encouraging staff to remain on-site and, when not possible, maintaining social distancing while off-site.
    • Regulating use of locker rooms, changing areas and other facility areas to reduce concurrent usage.
    • Encouraging storage of personal items and clothing in personal storage spaces, for example, lockers and during shifts.
  • Employers should consider reviewing ventilation and air conditioning before re opening the office. They should also introduce a cleaning regime that involves frequent cleaning of objects and surfaces that are touched regularly such as door handles and keyboards. There should be enhanced cleaning of busy areas.
  • Hand sanitiser should be provided in strategic points other than wash rooms.
  • PPE such as face masks including surgical masks beyond what employees usually wear is described as ‘not beneficial’. The guidance states ‘this is because COVID-19 is a different type of risk to the risks you normally face in a workplace, and needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE’.
  • The guidance does state though that there are some circumstances when wearing a face covering may be marginally beneficial as a precautionary measure to protect others if a worker is infected but have not developed symptoms. A face covering is described as being ‘very simple and may be worn in enclosed spaces where social distancing isn’t possible. It just needs to cover your mouth and nose. It is not the same as a face mask, such as the surgical masks or respirators used by health and care workers.’ The evidence of the benefit of face coverings to protect workers is described as ‘weak’. The guidance describes wearing a face covering is optional and is not required by law, including in the workplace. If workers choose to wear one, the guidance advises it is important to use face coverings properly and for workers to wash their hands before putting them on and taking them off. Employers should support their workers in using face coverings safely if they choose to wear one and instruct them in their usage including cleaning.  
  • Employers should put in place effective communications and training regarding the new work place practices prior to workers returning to work. This should be ongoing and unions should be involved.
  • In terms of enforcement, where the enforcing authority, such as the HSE or local authority, identifies employers are not taking action to comply with the relevant public health legislation and guidance to control public health risks, they can consider taking a range of actions to improve control of workplace risks. For example, where employers are not taking appropriate action to socially distance, the actions the HSE can take include the provision of specific advice to employers through to issuing enforcement notices to help secure improvements.

 

BLM head of employment law, London, partner Julian Cox's perspectives on the new guidance is as follows:

“The guidance is not perhaps the rallying call to an immediate return to work that many businesses would have hoped for in these challenging times.”

“Instead they represent what the Prime Minister has described as ‘baby steps’, mapping out what are essentially measures employers ought to be taking to in order to facilitate re-opening the workplace.”

“There is a continued emphasis on working from home as a first option. It is only where work cannot be performed from home for work or family reasons that the government are advocating a return to the workplace at this present time.”

“The guidance talks in terms of minimum numbers of employees needed to operate the workplace and identifies these being limited in terms of their role being critical to the operation of the business.”

“The guidance identifies a category of vulnerable workers that employers need to give special consideration to in terms of whether it is appropriate they return to the workplace and if so on what terms. Those identified as having protected characteristics as defined under the Equalities Act 2020 are also given highlighted as requiring particular consideration to avoid them being discriminated against.”

 “The guidance makes it very clear that employers have an obligation to carry out a risk assessment which needs to be in writing and in the case of employers with 50 or more employees published on their website.”

“I would recommend that this risk assessment be carried out before inviting any employees to return to work.”

“Employers will need to consider putting in a plethora of social distancing measures to comply with the guidance before looking to re-open the workplace, including staggering start times, changing floor plans, re organising work stations, putting physical barriers in place, and re thinking meeting arrangements. The list of measures which the government and scientific advice deems necessary to ensure the health and safety of the workforce are at the same time extremely onerous on employers. All of these steps are highly prescriptive likely to require a lot of planning to put in place meaning it is going to be a little while before businesses can re-open the workplace. At the same time it is likely to be a costly exercise for businesses.”

“On PPE the guidance makes it clear that surgical masks are not required, describing them as being of little value in preventing the spread of the virus. Curiously though it does instead go into some details about the use of face coverings for workers who suspect they have the virus to prevent the risk of the spread of the infection. Quite why I am not sure as the Government’s clear advice in such circumstances is that workers should be self-isolating in the circumstances. It is my strong advice that employers should be telling their employees to do so to prevent the risk of infection.”

“Employers will need to make sure they follow the government’s guidance to give workers who are understandably highly anxious of the risk of infection as they emerge from lockdown suitable reassurances. The Prime Minster in his daily briefing on 11th May encouraged workers to report any breaches to the local authority and health and safety executive. This will afford whistleblowing protection to them. These enforcing authorities have a range of measures at their disposal to ensure employers are compliant with the guidance. The Prime Minster also indicated in his daily briefing the Health and Safety Executive will be tasked with more site visits.”

“Employers also need to be particularly careful in terms of how they handle employees returning to work. No doubt many employees will try to seek to argue their role can be performed from home or that it is not critical to the business as defined by the guidance. Or they may express concerns on health and safety grounds in relation to returning to the workplace whether real or perceived. Employers need to be aware that should they look to dismiss an employee that is refusing to return citing health and safety reasons relating to the business not being COVID-19 secure then they will no doubt be referring to the government’s published guidance in claiming unfair dismissal. A dismissal that is related to health and safety reasons and/ or whistleblowing is categorised by employment statute as being automatically unfair meaning an employee can bring such a claim regardless of length of service. A bear trap for the unwary employer.”

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

 

 

 

 

 

 

Who to contact

Julian
Cox

Partner , London

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