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Employment Law: Health and Safety in the Post-COVID World

by Angela Macfarlane, Senior Lecturer, Northumbria School of Law

The pandemic is coming up to its 12-month milestone in the UK and has lasted far longer than any of us expected.  This article considers what this means for employers seeking to protect the health, safety and wellbeing of their employees in the post-COVID world.

Our popular online Employment Law CPD package has been updated to take account of issues arising in the new post-COVID world and is available by clicking the following link: Online CPD in employment law for a 12-month subscription for only £199. Please contact: businessenquiry@northumbria.ac.uk if you would like further information.

COVID-19: where are we now?

More people are being asked to return, or have returned, to the workplace, often under new patterns of working. For those working at home, working hours and patterns may have changed significantly, not just due to business needs but due to personal circumstances such as home schooling or caring responsibilities.

The consequence of repeated lockdown measures means that most of us are highly accessible and available now, resulting in the blurring of the boundaries between homelife and work life.  What started as temporary working arrangements are now becoming more permanent and many employers are now exploring incorporating some of these new ways of working once restrictions are eventually lifted. 

Measures already implemented such as lockdowns, masks and social distancing are not as effective because of new variants of the virus.  Sadly, death rates, hospitalisations and positive cases of Covid-19 remain extremely high and are reducing much more slowly.  The vaccination programme is yet to have a significant impact.  Employers and employees are naturally concerned about how to protect their workers and themselves from Covid-19 and the new variants.

COVID-19 and Health and Safety: what should Employers do?

The duties of employers and employees towards each other under Health and Safety legislation has not changed; what has changed is the level of risk because of the new variants of Covid-19. 

Employers must review their risk assessments to consider the new variants and record any changes they make.  It is for the employer to show that they have done everything that is reasonably practicable to protect the health, safety and welfare of its employees.  Failure to do so is a criminal offence.

What is reasonably practicable will change as we learn more about the risks and what we can do to minimise the risks.  It is measured against current knowledge.  It is therefore important that employers keep abreast of current learning and scientific developments about Covid-19 and incorporate that in their risk assessments and policies as quickly as possible. For example, knowledge about those identified as being at a greater risk of Covid-19 is developing and they must be specifically identified in a risk assessment.  Employers are expected to know this.

Reasonably practicable will include other measures, such as: monitoring compliance with its health and safety policies; further training of staff; and consultation with its employee health and safety representatives. Employers (and employees) should be ensuring that they are monitoring working hours, not exceeding the 48 hours maximum (without prior written agreement), that they are not overworked, that people are working safely, not exceeding safe levels screen time, have comfortable seating arrangements, secure remote platforms and systems etc, even where they are at home.

Following the HSE guidance and codes of practice and the sector specific guidance (currently 14) published by the Government is essential.

There is also separate guidance for schools, further education and childcare providers; weddings and civil partnership, ceremonies and receptions and celebrations; and public transport operators.

The HSE are conducting more spot checks on workplaces, including home workers by telephone.  Employers might choose to conduct their own spot checks to measure their own compliance and to evidence the steps being taken to discharge their duty.

With these new working practices, it is more difficult for employers and employees to pick up on issues, to spot signs of people under stress, to control and monitor behaviours or to identify discriminatory practices so they must be more enquiring and more alert to the possibilities of these arising.  Consultation and open, accessible communication avenues should continue to be at the forefront of employers’ measures in protecting the health, safety and welfare of their employees.

Though much discussed in the media at present, reasonably practicable is unlikely to include mandatory vaccination of employees. 

Interplay with other Employment Law Protections

With the new variants of Covid-19 employees may have increased or new concerns about the health and safety of their workplace.  They may feel that their employer is not doing enough to protect them.  Employment legislation offers some additional duties and protection to an employee in these circumstances which employers need to be aware of:

  • Refusal to attend the workplace/Leaving an unsafe workplace

An employee (and from 31 May 2021, a worker) is protected from being subject to a detriment or dismissal if they refuse to attend the workplace or leave the workplace if they can demonstrate that they believe there to be a serious and imminent danger to their health.  This is a high hurdle to overcome, yet many employers are reporting that employees are coming to them expressing concern about returning to the workplace because of the new variants of Covid-19.   Clear and up-to-date risk assessments, strict monitoring of compliance with policies and health and safety measures, flexibility and good communication can help allay concerns.  Obviously if there is serious risk of imminent danger then the employer must not require anyone to attend the workplace.  Remember, the risk will be higher for certain groups so this should form part of the decision-making process when an employer is deciding who must return to the workplace. 

  • Whistleblowing

Employees are protected in law under whistleblowing legislation if they disclose possible health and safety breaches, however it must be a qualifying disclosure and it must be a protected disclosure.  The protection will take effect if the employee is subjected to a detriment or dismissed in consequence of the disclosure.   This could be where an employee feels that the measures implemented by an employer are insufficient and putting them in danger of contracting Covid-19 and they disclose their concerns in good faith to their employer or a prescribed body such as the Health and Safety Executive or their industry regulatory body.  Note that disclosures to the media are unlikely to qualify for protection.

  • Other Duties

An employer also has common law duties to their employees to ensure that they are not hurt or injured in the workplace due to their negligence.  An employer has a duty of care and maintaining mutual trust and confidence under their employment contract.  These duties encompass the risk of contracting and becoming ill with Covid-19 if the employer has not taken sufficient care.    

What about Employees? 

An Employee has a duty to take reasonable care of their own health, safety and welfare under health and safety legislation.  Whilst this is a lesser duty than that which is imposed on an employer it is still a duty that must be complied with.  A failure to comply is a criminal offence.

An employee must ensure that they are aware of and follow all health and safety policies and procedures.  An employee also has a duty of care and maintaining mutual trust and confidence under their employment contract.   This will include not damaging their employer’s reputation with disclosures that do not come within whistle blowing protections.

Positive News

The vaccination programme is being rolled out quickly, and although the impact will not be immediate, we are being told that we will be seeing some positive impact soon.  Treatments for patients who have contracted Covid-19 are continually improving as medical professionals learn more about effective treatment options.  With this positive news comes the hope of some return to normality for all of us, whether at work or otherwise, though the possibilities for new more flexible working practices with a combination of onsite and remote working models being considered.

 

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