Health and Safety at Work in Covid-19 Times

During the coronavirus (Covid-19) pandemic, employers are obliged to take reasonable steps to protect their employees and workers from harm, including the risk from coronavirus, and that will usually involve carrying out a risk assessment dealing specifically with coronavirus, and reflecting public health regulations and Government guidelines.

Risk Assessment

As part of that risk assessment, the employer must identify any situations or work activities that might cause transmission of coronavirus; consider who might be at risk (including, for example, employees, customers, delivery drivers, outside contractors); decide how likely it is that anyone could be exposed to coronavirus; and identify any steps that could reasonably be taken to reduce the risk.

When carrying out the risk assessment, it is important to remember that not everyone is the same and that you may need to consider things such as your workers’ personal circumstances, background, religious (and other) beliefs. For example, you may have employees who have caring responsibilities for vulnerable children or adults; employees who, for whatever reason, do not wish to be vaccinated against coronavirus; pregnant or disabled employees. Special consideration may be required in respect of these groups, and it is important that no-one within the workplace should feel discriminated against or that their feelings and personal circumstances are not taken into account.

You should consider talking to your employees when carrying out a risk assessment to ensure that any steps you are proposing are realistic, and it may, of course, be the case that your employees have their own ideas about controls that could be put in place to ensure their health and safety in the workplace, or indeed when outside of the workplace (for example, when working from home) on work business.

Steps to Consider Taking

Examples of steps employers could consider taking to prevent the spread of coronavirus include the following:

• Having good ventilation – open windows and doors if it is safe to do so (remembering that fire doors must be kept closed);
• Making suitable facilities available for handwashing and sanitising (consider erecting signs reminding employees of the need to wash hands/use hand sanitiser regularly);
• Keeping the workplace and frequently used work surfaces clean;
• Consider a hybrid office working/working from home policy that will allow social distancing in the workplace by staggering start/finish times and allowing employees to come into the workplace on different days if your work model allows.

If you employ fewer than five employees, you still need to carry out a risk assessment but do not necessarily need to retain anything in writing, although, of course, it is always advisable to do so.

It is also worth mentioning that it is not simply a case of carrying out a risk assessment and putting controls in place – you should be monitoring the workplace to ensure that the controls are being adhered to and are working as expected.

What to do if Employees are Concerned about going into the Workplace

Firstly, as an employer, you should encourage your staff to talk to you about any concerns they have so that you can try to resolve them together. You should also try to understand the reasons why the employee has these concerns, for example: are they at high risk of catching coronavirus – do they have specific health problems that would make them particularly vulnerable to the virus? Are they disabled? Do they care for someone within the home who is vulnerable or at high risk? Are they pregnant? Do they have children?

The employer should listen to employees’ concerns and take whatever steps are reasonable to ensure their safety at work. If there are “reasonable adjustments” the employer could take for disabled staff, consider putting these in place.

Taking Employees’ Concerns Seriously

Employers should be careful to take concerns raised by employees seriously. Employees and workers are protected by law from being dismissed or suffering detriment if they raise concerns to their employer about a health and safety issue. They are also protected if they reasonably believe that being at work would put them in “serious and imminent danger” and are then dismissed or treated less fairly by the employer as a direct result of raising these concerns. In these circumstances, an employee can make a claim to an Employment Tribunal for unfair dismissal or unlawful detriment under the Employment Rights Act 1996 even if they do not have the two years’ qualifying employment that would normally be required to make an unfair dismissal claim. It is also possible for an employee who believes that their employer has not taken reasonable steps to protect their health and safety and to prevent the spread of coronavirus, to resign and then claim for constructive dismissal. Be aware also that concerns may be reported to the Health and Safety Executive (HSE) to deal with under their powers.

There have been several cases heard by the Employment Tribunal in recent months arising out of such issues and in which judgment has been made in the employees’ favour – the employer was not able to show that a dismissal arising out of an employee’s concerns was unrelated to those concerns being raised and was for a fair reason. It is anticipated that further cases will come through the Employment Tribunal in the coming months. Employers are advised to take employees’ concerns seriously and to do what they can to accommodate them and to make the workplace safe.

If you require any advice on any of the issues above, please contact Nicola Grant at Everys’ Taunton office on 01823 362879.