Getting back to work after the period of lockdown can be particularly challenging for small firms, but assessing risk and implementing appropriate health and safety measures is vital, writes Hannah Thomas employment solicitor at FSB Legal.
You may recall the case of the rail worker Belly Mujinga who, while working in the ticket office at London Victoria station in March 2020, was assaulted by a member of the public who spat on her, claiming to be infected with Covid-19.
Although an investigation by British Transport Police found the attack did not lead to her death and no action was taken against the suspect by the police, it brought the issue of protective equipment firmly into the spotlight.
At that time, health and safety guidance for transport workers did not expressly require the use of screens or barriers in certain work settings.
Current Government guidance states that clinically vulnerable workers should be redeployed into lower risk activities where they have the highest chance of remaining two metres away from others, where possible. This will, of course, apply to those in public-facing roles.
It is a criminal offence for employers to fail to comply with health and safety law. The enforcement of health and safety law is shared between the Health and Safety Executive (HSE) and local authorities. To get specific guidance based on where you are in the UK, contact the FSB Legal Helpline on 03450 727 727.
An employer’s failure to comply with health and safety legislation does not give rise to civil liability and employees cannot bring a claim directly against the employer where they fail to do so, but they may seek to bring a personal injury claim subject to proving employer negligence and causation; i.e. that it is more likely than not that the worker contracted coronavirus while at work. This will be hard to prove where Covid-19 is present in the general community.
What should I do to comply with health and safety legislation during the pandemic?
The starting point is to carry out a coronavirus (Covid-19) risk assessment in consultation with your workers and any recognised trade union. You should not think of this as an administrative exercise alone but as your blueprint for action and as the crucial first step for keeping your staff safe.
Where you have at least five employees, there is a statutory requirement to record the main findings of a risk assessment in writing. In any case, the results of the coronavirus risk assessment must be shared with your workforce. It is advisable that you retain proof of this.
Government guidance states that, where possible, employers should publish the results of their risk assessment on their website (the Government expects all businesses with more than 50 workers to do so) and display a notice in the workplace to confirm they have followed the Government ‘Covid Secure’ guidance.
FSB members can access our template Covid-19 risk assessment, which is available on the FSB Legal Hub.
How can I implement safe systems of work?
Employers cannot eliminate the risk of contracting coronavirus in the workplace and the law does not expect them to do so. Employers are legally required to put in place health and safety measures identified by their risk assessments and Government guidance that are reasonably practicable and reduce the risk to an acceptable level.
Current Government guidance states that employees should work from home where they can. For employees who are required to attend their workplace, they should maintain two metres social distancing, wherever possible.
Employers should redesign workspaces to maintain two-metre distances by staggering start times, creating one-way walk-throughs, opening more entrances and exits, or changing seating layouts.
Where people cannot be two metres apart, employers should manage the transmission risk by putting barriers in shared spaces, creating workplace shift patterns or fixed teams and minimising the number of people in contact with one another; or ensuring colleagues are facing away from each other.
Workplaces should be cleaned more frequently, with particular attention to objects like door handles and shared facilities. Employers should provide handwashing facilities or hand sanitisers at entry and exit points to the workplace.
Employers have flexibility on how they implement Government guidance and industry sector guidance by adjusting it to their own work settings, in accordance with the findings of their risk assessments.
Hannah Thomas is an employment solicitor at FSB Legal. FSB members should ring the FSB Legal Helpline on 03450 727 727 to discuss legal issues.