With the nation all too ready to resume a sense of “normality” in both private and work life, the Government’s communications regarding the easing of lockdown restrictions were eagerly awaited. On Sunday, the UK government announced the COVID-19 three-step recovery strategy which was followed later in the week with the Northern Ireland Executive’s phased 5 step recovery plan. Both the UK and N.I ‘roadmaps’ see the re-opening of businesses across the UK over coming months, provided that the health and safety of employees can be protected. It is no surprise that, with the slow and systematic easing of the lockdown restrictions, businesses need to carefully plan how workers can safety return to the workplace. This will certainly be no mean feat, however, in order to assist employers to ‘get their businesses back up and running and workplaces operating as safely as possible” the ‘Working safely during coronavirus (Covid-19)’ guidance has been published. This guidance, which we will refer to as the ‘COVID-19 Secure guidance’, was developed in consultation with approximately 250 businesses, unions, industry leaders as well as the devolved administrations.
The Carson McDowell Health and Safety and Employment law teams have responded to the most frequently asked questions that they have received in recent days.
Who does the guidance apply to?
The guidance applies to all businesses which are currently permitted to open and covers eight workplace settings. If a business operates in more than one of these settings, each of the relevant guidelines should be considered.
While the Executive of Northern Ireland have made clear that the country will follow a separate approach to lifting restrictions, the ‘Working safely during coronavirus (COVID-19)’ guidance states that it ‘should be considered alongside local public health and safety requirements and legislation in Northern Ireland’.
The Department for the Economy recently issued guidance for Northern Ireland businesses, which advises the same general approach to managing COVID-19 but is less detailed than the COVID-19 Secure guidance. Employers in Northern Ireland who are currently operating or planning to reopen should therefore ensure they have carefully considered both sets of guidelines in addition to current public health advice.
What does the guidance require?
In general, the guidance requires that businesses consider five ‘key points’ for operating or planning to reopen that should be implemented as soon as is practical:
Work from home, if you can
Carry out a COVID-19 risk assessment, in consultation with workers or trade unions
Maintain two metres social distancing, wherever possible
Where people cannot be two metres apart, manage transmission risk
Reinforcing cleaning processes
The guidance provides a number of practical measures that focus on implementing controls such as hand washing, social distancing and cleaning. It does not advocate the use of PPE specifically for COVID-19, with the exception of clinical settings such as hospitals. The guidance does however suggest that a face covering should be used in enclosed spaces where social distancing is not possible and where there may be contact between individuals who do not normally meet, such as on public transport.
Who can carry out a COVID-19 risk assessment?
According to previous guidance from the Health and Safety Executive, you do not necessarily need specific training or qualifications to carry out a risk assessment. An employer can delegate this task but they ‘must appoint someone competent to help you meet your health and safety duties’. A competent person is described as someone with ‘the necessary skills, knowledge and experience to manage health and safety.’
When it comes to assessing risks related to COVID-19, employers should ensure that whoever undertakes the risk assessment is familiar with the COVID-19 Secure guidance and any other existing public health advice.
What do employers need to do with their COVID-19 risk assessment?
As with any risk assessment, employers with more than five workers must ensure it is documented. The guidelines also suggests that employers should consider publishing their risk assessment on their website and goes further to state that it expects employers with more than 50 workers to do this.
Businesses should of course aim to identify and control hazards as thoroughly as possible with their initial assessment. However, employers should be aware that they may not get everything right the first time and, as with any risk assessment, the key is to review and update it as often as is necessary. Given that the information and guidance relating to COVID-19 is constantly developing, employers should treat their COVID-19 risk assessment as a living document and expect to review and update it frequently.
What responsibilities do employers have to consult with their employees?
The guidelines emphasise the existing requirement to consult with employees in assessing workplace risk and in developing and reviewing workplace health and safety policies. If the employer recognises a trade union, employers must consult with the health and safety representative selected by the trade union. The guidelines, in addition to the Health and Safety (Consultation with Employees) Regulations (Northern Ireland) 1996, permit employers that do not have a trade union health and safety representative to consult directly with employees. This is likely more suitable for smaller businesses or businesses that undertake low-risk work.
Is following the ‘COVID-19 Secure guidance’ enough to comply with Health and Safety criminal law obligations?
Health and safety obligations are contained in articles 4 and 5 of the Health and Safety at Work (Northern Ireland) Order 1978. These require that employers take all reasonably practicable steps to ensure health, safety and welfare of their workers and anyone else impacted by their operations. Employers are also under a duty to make ‘suitable and sufficient’ risk assessments under the Management of Health and Safety at Work Regulations (Northern Ireland) 2000.
Given that every business is affected in some way by COVID-19, it would not be possible to produce guidelines on every step that employers must take to ensure health and safety. The COVID-19 Secure guidance instead provide a basis for employers to go about assessing and controlling risks posed by COVID-19.
Of course, employers are still subject to other health and safety obligations under legislation such as the Fire Safety Regulations (Northern Ireland) 2010 or the Control of Asbestos Regulations (Northern Ireland) 2012. Employers must consider how any changes to their operations as a result of COVID-19 affect these existing obligations.
Employers will invariably be faced with difficult decisions on how to take all reasonably practicable steps against a background of practical and/or financial constraints. Deciding on a course of action will require a balancing exercise, taking these factors into account along with the potential risk of harm. Depending on the nature of the business,
employers may also have to take into account the utility they are providing in managing the pandemic. Health and safety should remain the priority and if suitable controls cannot be put in place for a particular activity, it should be discontinued until it is possible to do so. We would advise that employers carefully document their decision making process.
Employers should consider obtaining legal advice on difficult decisions which may have the added benefit of protecting any sensitive deliberations under legal privilege.
Will companies be prosecuted for failing to follow the guidance?
The HSE advised that it will “take a flexible and proportionate account of the risks and challenges arising from the pandemic”. The Chief Executive, Robert Kidd, also confirmed in a statement that the HSENI will provide advice and support to businesses. While this pragmatic approach will be welcomed by employers, breach of health and safety obligations remain a criminal offence. Mr Kidd confirmed in his statement that HSENI “will act to address unsafe working conditions where this is needed.” Businesses who ignore the existing guidance on COVID-19 may therefore expect advice or warnings from their regulators or, if it is considered warranted, enforcement notices or prosecution.
Employers should appreciate that their employees may be very concerned about COVID-19. The Health and Safety Executive for Northern Ireland reported at the beginning of April that they had received an 1800% increase in complaints compared with the previous year. Employers who ignore the guidance or operate without suitable controls may find they are investigated because of complaints from employees, as has been demonstrated by media reports this week.
What if employees refuse to return to work when it is deemed safe to do so?
Understandably, there will be workers who will be reluctant to return to work, despite employers efforts to make the workplace “Covid-19 secure” in line with health and safety guidance. Perhaps they share a household with someone who has been shielding, or they are simply anxious around the continued transmission of the virus. Communication will be vital to ensure that workers understand how the employer is managing the risk of transmission of the virus. The guidelines state that employers should share the results of their risk assessment with the workforce and there is an expectation that all businesses with over 50 employees publish it on their website. Being sympathetic to the concerns of individual workers, and communicating the steps that have been taken by the business in ensuring that the workplace is safe, is important to trying to encourage them back to work. Employers (and employees) will need to be flexible and adaptable in the months ahead.
It may be possible (and even necessary in some circumstances) to take disciplinary action against workers who refuse to return. However, it will be important to ensure that any disciplinary action reasonable in all the circumstances and that other options have been explored. For instance, is there somewhere else within the workplace that the employee would be happy to return to (a spare office, for example, instead of open plan); can they work staggered hours to avoid rush-hour on public transport; can they take annual leave for a period of time; can they take unpaid leave; can they be placed on furlough?
We would advise that employers seek legal advice when disciplinary proceedings are contemplated so to assess any potential litigation risk.
We are ready to re-open our business but, in order to comply with social distancing measures, we need to reduce the numbers of staff working at any one time. What options do we have and how do we select which employees will return to work?
The furlough scheme has now been extended until the end of October 2020, with employers “sharing the cost” of the scheme from August. This will undoubtedly give businesses some further ‘breathing space’ to plan for re-opening. Although further guidance is due to be published detailing the recent changes that have been made to the furlough scheme, we do know that, from the start of August, furloughed workers will be able to return to work part-time with employers being asked to pay a percentage (as yet unknown) towards their salaries. This would allow some employees to return to work on a part-time basis whilst allowing others to remain on furlough.
It is also open to employers to consult with employees regarding changes to their existing terms and conditions, for instance, a reduction in their working hours (with a consequent reduction in pay) which might enable an employer to bring a greater number of employees back to work, albeit on a part-time/ reduced hour basis. Given that this is a substantial change to the employee’s contractual terms, this will require their consent and, depending on the numbers of employees involved, this may also trigger collective consultation obligations (if the consequence of not accepting the change would be a proposal to terminate the employment of 20 or more employees within a 90 day period).
In selecting which employees are to return to work, and which are to remain on furlough / part-time hours etc., it is important that employers adopt a fair, objective criteria for selection (e.g. skills and experience). It might also be appropriate to consider how employees travel to work, so to avoid the need for employees to use public transport for instance. Crucially, the selection should not be discriminatory. Employers should not make assumptions as to which employees would be able/willing to return to work (e.g. on the basis of caring responsibilities).
When we re-open our business, we want to temperature check our employees. Will this be allowed?
In principle, yes this will be possible in certain circumstances where the temperature testing is a proportionate and necessary measure to protect employees’ health and safety. It is also important to consider whether there are other less intrusive means that could be used in place of temperature testing.
However you should take specific legal advice before implementing temperature testing, because there are complex privacy and data protection issues to consider. By temperature testing employees, you will be processing “special category” data (health data) and therefore it needs to be carefully protected. A lawful basis is required for any personal data to be collected and processed, but there are additional considerations and requirements for special category data. You may also need to carry out a data protection impact assessment.Once again, communication is key and employers should communicate with employees about how and why the data is to be used and be clear about what decisions will be made with the data collected. The ICO has issued specific guidance for employers on temperature testing.
On re-opening our business, can we amend an employee’s duties or redeploy them to meet the needs of the business?
This will largely depend on how substantial the change is. Employers may have a contractual right (whether express or implied) to change an employee’s duties or place of work. However, such a request must still be ‘reasonable’. For instance, even with an express mobility clause in an employee’s contract, it may still be considered unreasonable to insist that they relocate to a location which would substantially increase his/her daily commute or which might require him/her to use public transport. If there is no contractual right (or there is a contractual right but the request is not reasonable) then the employer should consult with the employee to seek their agreement to the change.
Both employers and employees will need to be adaptable as they try to adjust to new and unfamiliar working practises. It will also be important to maintain good industrial relations. If employers communicate with employees to explain why changes are needed, employees may be much more willing to accept changes, whether on a temporary or permanent basis.
I have heard a lot in the press about certain sectors refusing to return to work, and their trade unions saying that employment laws protect their members who cannot be compelled to go to work. What’s that about and are the unions right?
There are various provisions in employment legislation that protect employees from being subjected to detriment (like disciplinary action) or dismissal for reasons related to health and safety. One of the protections applies where employees leave, threaten to leave or refuse to return to a workplace they reasonably consider to be dangerous. The precise words used in the legislation is that the danger must be “serious and imminent” and the employee “could not reasonably be expected to avert” the danger in another way. The employee’s belief (about the “serious and imminent” danger) must be both reasonable and genuine. In short, if the employee cannot reasonably avert the danger, then he/ she is entitled to remove him/herself from harm’s way.
There are relatively few cases involving the interpretation of this legislation, and (to the best of our knowledge) none that involve the sorts of health risk presented by pandemics. However, provided an employer is taking all the steps recommended by public health and HSE guidance to make its workplaces as safe as reasonably practicable before re-opening, one would hope that the danger is not “serious and imminent”. But there may be workplaces (like intensive care units or care homes) where, for example, the absence of adequate PPE may well reasonably and genuinely be considered by some employees to represent a “serious and imminent” threat.
There is little doubt in our minds that many employers will have to grapple with health and safety complaints and whistle blowing allegations in the months and years to come, as we all adjust to the “new normal”.
*Please note that this information is for guidance purposes only and does not constitute, nor should be regarded as, a substitute for taking legal advice that is tailored to your particular circumstances.
If you would like any further information please contact Rachel Penny from the Employment team or Ben Johnston from the Health and Safety team at Carson McDowell.
*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.
Thanks to Rachel Penny for this blog.