Following a later COVID-19 lockdown than our European neighbours last March, an interesting piece in the Guardian on 5 August cited a report by Morgan Stanley's research unit that found a slower return to the workplace than in other European countries with only 34% of white collar workers in the UK back at their desks at that point compared to 83% in France and 76% in Italy. 

The Government has now changed its guidance over the August bank holiday weekend from guidance that employees who could not work from home could return to the office provided it was made COVID secure to a much more positive encouragement for employees to return to their workplace. Many charities, of course, continued to work during the lockdown, in particular those delivering public services. However, for those that did not, the change in guidance means now is the time to consider what needs to be done for a return to the workplace.

This article sets out the steps that need to be taken in advance of a return to the workplace. It is to be noted that the devolved nations have each taken their own approaches to the easing of lockdown and for clarity this article focuses on the situation in England.

Health and Safety obligations

For those organisations contemplating a return to work the health and safety of staff and any visitors must be the overriding consideration. The Health and Safety at Work etc Act 1974 (HSWA 1974) applies. This imposes the general duty on employers to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all its employees and others that may be affected by the organisation's work activities.

More specifically, there is the obligation to make suitable and sufficient risk assessments of potential health and safety risks faced in the workplace that might affect both employees and non-employees. It is important to note that managing the 'risk' of harm is key, not whether actual harm has occurred (although the presence of any actual harm can serve as an aggravating factor if an organisation was investigated by the authorities).

As well as the statutory duty, all employers have a common law duty to take reasonable care for the safety of their employees and to provide them with a safe place of work.

The Health and Safety Executive (HSE) that is responsible for promoting health and safety at work has produced Working Safely during the coronavirus outbreak which sets out simple steps employers can take to help manage the risk of COVID-19 while continuing to run their business and Talking with your workers about preventing coronavirus. Also helpful are the guides on consulting workers Consulting workers, Preparing Health and Safety policies (obligatory if your organisation employs five or more) which includes a template policy, and Managing risk and risk assessments at work which includes a template risk assessment.

Employees of course also have health and safety obligations at work, in particular, to take reasonable care for their own health and safety and anyone affected by their actions and to co-operate with their employer to ensure compliance with the organisation's overarching health and safety duties.

The HSE can bring criminal prosecutions against employers (and employees, if appropriate) even if there is no actual injury, so it is important to have taken all reasonable steps to prevent the exposure to the risk of contracting the virus to avoid potential enforcement action in the future.

COVID-19 guidance

There are a number of guidance documents for employers. While this must be the next port of call, it should be remembered that it is only guidance, rather than law unlike the HSWA and MHSW Regulations (referred to below) which are statutory and the guidance is no substitute for your own organisation's risk assessment. Having said that, complying with the relevant guidance will normally provide reassurance that an organisation is doing enough to comply with the law. However, if, in all conscience, you do not believe it is possible to re-open safely based on your organisation's risk assessment, the best advice may be to stay closed for the time being.

The COVID-19 Secure Guidelines are the essential reading. They deal with how work can be undertaken safely and assist with undertaking COVID-19 risk assessments. The guidelines now cover sixteen workplace settings and consider similar steps for employers in each workplace setting. The most relevant for charities are likely to be those relating to offices and contact centres, shops and branches and other peoples' homes. The remaining guidelines relate to factories and warehouses, labs and research facilities, construction and other outdoor work, restaurants offering takeaway, vehicles, educational and childcare settings, public transport operators, close contact services, visitor economy, hotels and guest accommodation, heritage locations, grassroots sport and gym/leisure facilities and performing arts.

Each set of Secure guidelines suggests that employers should reduce risk to the lowest reasonably practicable level by taking preventative measures in the following order of priority:

  • Ensure that workers and visitors who feel unwell stay at home.
  • Increase the frequency of hand washing and surface cleaning.
  • The instruction at present remains to make every reasonable effort to ensure that employees can work safely which could be working from home or within the workplace if COVID-19 Secure Guidelines are followed closely. Within the workplace everyone should make every reasonable effort to comply with the 2m social distancing guidelines or 1m with risk mitigation where 2m is not viable.
  • Where the social distancing guidelines cannot be followed in full in relation to a particular activity, organisations should consider whether the activity needs to continue for the business to operate and, if so, take all mitigating actions possible to reduce the risk of transmission between staff.

The guidelines provide broadly similar guidance across workplace settings and deal with approach to risk, who can return to work, communicating with staff about the return to work, PPE and face coverings, social distancing, facilitating verbal communication, keeping records of staff and customers, outbreaks in the workforce, shift patterns and working groups, work-related travel, accidents at work, managing customers, visitors and contractors, cleaning the workplace and dealing with inbound and outbound goods.

There is also an online tool which provides sector-specific advice for safely reopening based on answers to an interactive questionnaire.

Finally each of the Secure Guidelines notes that the HSE can take enforcement action against employers who do not comply with the relevant public health legislation.

The Government also published 5 steps to working safely to help employers apply the Secure guidelines principles and these must be implemented by all employers. These are:

  • To carry out a COVID-19 risk assessment in line with the HSE guidance and consult with workers or trade unions and share the results of the risk assessment with the workforce.
  • To develop cleaning, hand-washing and hygiene procedures.
  • To help staff work from home by discussing home working arrangements, ensuring they have the right equipment, including them in work communications and looking after their physical and mental wellbeing.
  • To maintain 2m social distancing where possible; and
  • Where people cannot be 2m apart to manage transmission risks by considering whether an activity needs to continue for the business to operate, keeping the activity involved as short as possible, using screens or barriers to separate people, using back to back or side to side working whenever possible, staggering arrival and departure times and reducing the number of people each person has contact with by using fixed teams or partnering.

5 key steps to working safely

1. Risk assessment and consultation

Under the Management of Health and Safety at Work Regulations 1999 (MHSW Regulations) the HSE suggests that in conducting a risk assessment the employer must identify, any measures it needs to take to comply with its obligations by making a suitable and sufficient assessment of:

  • the risks to the health and safety of its employees to which they are exposed whilst at work
  • the risks to the health and safety of non-employees arising out of the conduct of the business

The significant findings of this assessment should be recorded in writing where there are five or more employees.

It is important for the risk assessment to be specific to the organisation and should detail the measures your organisation will take to manage risk. The risks of further disruption as a consequence of a second wave of COVID or local or even national lockdown will need to be factored in.

Consultation requirements

Under the MHSW Regulations employers must provide their employees with 'comprehensible and relevant information' on the risk assessment as follows:

  • the risks to employee health and safety identified by the assessment
  • the preventative and protective measures the risk assessment has shown the employer it needs to take
  • the procedures to be followed in the event of serious and imminent danger to people at work
  • the identity of the people who will implement any evacuation of the workplace
  • where they share a workplace with one or more other employers, the risks to employee health and safety notified to them by the other employer(s).

The 5 steps to working safely note that employers should share the results of their risk assessment with their workforces and suggests that employers should publish them on their websites. The Government expects all organisations employing over 50 to do so.

Communicating with employees

Whether there is a union, elected health and safety representatives or whether the organisation communicates with the workforce directly, the matters that employers will need to cover will include:

  • how they will emerge from lockdown in line with Government guidance
  • what changes have been made to the workplace to support a return to work and what actions are needed from employees
  • the support the employer has in place for employees and the channels of communication available if employees have questions or concerns
  • the requirement for employees to immediately disclose relevant health issues concerning themselves or members of their households and the need to self-isolate if they or a member of their household experiences symptoms of COVID-19
  • any changes the employer is proposing, such as seeking changes to terms and conditions or redundancies for which formal consultation will be required

ACAS published Coronavirus (COVID-19): advice for employers and employees which suggests that employers and employees speak as early as possible about when they can return to the workplace and staff should continue to work from home if they can and employers should consult with staff about returning to work with a view to reaching agreement 

Such consultation and ongoing communication is key to successful implementation and will help employers to maintain loyalty and trust and to avoid complaints and grievances and even potential legal claims. It will be important to document fully.

2. Develop cleaning, handwashing and hygiene measures

Employers need to ensure an increased frequency of handwashing and surface cleaning by encouraging people to follow NHS guidance on handwashing, by providing hand sanitiser around the workplace as well as in toilet facilities, frequent disinfecting of surfaces and objects touched frequently, increasing cleaning of busy areas, setting guidelines for the use and cleaning of toilets and providing hand drying facilities.

3. Homeworking

Although the guidance on home working has changed, the majority of employees, at least at the beginning of August, were still working from home. Where this will be continuing, employers need to ensure people have the equipment they need, ensure they are included in communications and continue to look after their physical and mental wellbeing.

4. Maintain 2m social distancing where possible

Employers need to put up signs to remind staff and visitors of social distancing guidance, avoid shared work stations, use floor markings to help people keep 2 metres apart, arrange one way traffic through the workplace if possible, and see visitors by appointment if possible.

5. Where people cannot be 2m apart manage transmission risk.

This is done by considering whether a given activity needs to be done in order for the business to operate, keeping the activity as short as possible, using screens or barriers to separate people, using side-to-side or back-to-back working where possible, staggering arrival and departure times and reducing the number of people each individual has contact with by using fixed teams or partnering.

A poster has been produced reflecting the 5 steps that employers should display in their workplaces to demonstrate they have followed the government's guidance. This can be downloaded here.

Special cases – vulnerable persons

The Secure Guidelines consider staff who are clinically extremely vulnerable (and were advised to shield prior to 1 August) and those who are clinically vulnerable as well as advising that employers should be mindful of employees with protected characteristics who are protected by discrimination law. Staff should not come to work when they are bound to stay at home under government guidance which now includes people in quarantine following travel abroad. Staff who are advised to self-isolate because they have COVID symptoms, share a household with anyone displaying symptoms or advised to self-isolate under the government's test and trace strategy should be enabled to work from home if possible, but otherwise will be deemed incapable of work and entitled to SSP.

Clinically extremely vulnerable staff

These were those who were advised to shield until 1 August. Secure guidelines are not consistent across sectors and organisations need to refer to those applicable to their operations. Some require employers to maintain 2m social distancing in respect of extremely vulnerable staff when they return to the workplace but this is qualified so that 1m can be maintained with additional protections. Other guidelines provide that the clinically extremely vulnerable 'have been strongly advised not to work outside the home during the pandemic peak and only return to work when community infection rates are low'.

All guidelines provide that employers should consult with their employees to determine who can come into the workplace safely taking account of an individual's journey, childcare responsibilities, protected characteristics and other personal circumstances. Extra consideration should be given to employees at higher risk and employers should consider local transport and take appropriate actions such as staggered start and finish times. If it is agreed that employees in this category should return to work the COVID-19 risk assessment should reflect the decision and detail the mitigations in place. Employees should not be forced to return to an unsafe workplace.

Clinically vulnerable staff

Clinically vulnerable employees are people over 70, pregnant women and those under 70 with a specified underlying health condition. Again the Secure guidelines are not consistent. Some suggest clinically vulnerable staff should be helped to work from home either in their current role or an alternative role and that where they are not able to work from home, they should be offered the safest available onsite roles, enabling them to maintain social distancing guidelines. Otherwise the employer should 'carefully consider whether this involves an acceptable level of risk'.

Other guidelines do not give specific advice for this group, instead they note that those identified in the Public Health England report Disparities in the risk and outcomes of COVID-19 may be at higher risk of infection and adverse outcomes. Those groups are: older men, those with a high BMI, those with an underlying health condition such as diabetes and those from BAME backgrounds.

The guidelines provide that these vulnerabilities should be considered in the risk assessment, people in these categories should be consulted before their return to work and employers should consider the specific guidelines for their sector as well as the particular circumstances of the employee and the features of the workplace.

Other staff

There are likely to be other employees who do not fall into a vulnerable category but are concerned about a return to the workplace. All employees have the right not to be subjected to any detriment on the grounds that they refuse to return to their place of work in dangerous circumstances provided the employee reasonably believes the danger to be serious and imminent. Although these provisions have not yet been tested in cases relating to COVID-19 employers are likely to be best advised to allow these employees to continue to work from home if that has been possible to date.

Employers will need to take care to avoid any step that could constitute discrimination against those sharing a protected characteristic. In particular clinically extremely vulnerable staff will most likely be disabled under the Equality Act 2010 and many clinically vulnerable staff will also be. Other staff may share a household with vulnerable individuals and potentially claims could be brought on the basis of association with a disabled person. In some cases it will be sensible to allow members of these groups to continue to work from home if they wish to but assumptions should not be made and individual views will always need to be considered. We also now know that the virus has affected some groups more adversely than others including older men and black and Asian people. There will also need to be a risk assessment for pregnant women and women returning from maternity leave and consideration of suspension from work if there is a risk to mother or baby's heath. In all cases employee concerns need to be listened to as many will have genuine fears. The mental health of some staff may have been affected by the Pandemic and staff may have experienced loneliness, isolation and depression. ACAS has published useful guidance - Coronavirus and mental health at work.

Conclusion

These are the first steps for employers now contemplating a return to the work place and they are both onerous and potentially costly – but it is better to act in a preventative and proactive manner instead of reacting to an incident involving exposure to the risks associated with the virus, which could result in action being taken against the organisation. Much will depend on open communication and engagement with the workforce and other relevant persons both during the planning and implementation stages to ensure a smooth transition and to avoid legal and reputational risk.