UK employers are facing many employment law issues as restrictions begin to be eased and more employees can come back to work. These FAQs cover employers' health and safety obligations, medical testing, contact tracing and adjusting hours and responsibilities.
The government has recently announced new guidance to enable UK employers to start to bring those staff who cannot work from home back to work:
- The government has released eight separate guides on working safely during coronavirus. These cover a range of different types of work: construction and other outdoor work; factories, plants and warehouses; homes; labs and research facilities; offices and contact centres; restaurants offering takeaway or delivery; shops and branches; and vehicles.
- This followed the earlier publication of the government's roadmap for leaving lockdown. Step one begins on Wednesday 13 May, when sectors of the economy that are not forbidden from opening have been told they should do so. Only workplaces such as hospitality and non-essential retail must remain closed. However, the broad advice remains that anyone who can work from home should continue to do so and offices are likely to remain closed in the short term. Employers should not feel pressured into reopening until they are sure they can do so safely.
- Employers need to do a Covid-19 risk assessment as soon as possible. All employers should consider publishing their risk assessment on their website and the government expects all employers with more than 50 employees to do so.
The following are answers to frequently asked questions about the health and safety issues which arise when employers are re-opening their workplaces. See also our FAQs on staffing decisions when reopening workplaces which cover specific issues in relation to deciding which employees should stay at home and what happens if employees do not want to return to work. In addition, our FAQs on furloughing employees deal with all aspects of the government's Coronavirus Job Retention Scheme
Health and safety at work
If we open our workplace, what steps must we take to make it Covid-19 secure?
All employers have statutory duties to provide a safe place of work and general legal duties of care towards anyone who may be accessing or using their place of business. To discharge these duties, employers must take the following steps:
- Carry out suitable and sufficient risk assessments to identify the risks. Risk assessments should also look at different groups of workers (e.g. vulnerable workers), for whom you may need to take extra health and safety measures.
- Implement measures to minimise those risks. You must take all reasonably practicable steps to minimise the risks. This is not the same as having to eliminate the risks altogether.
To clarify what you need to do, you should refer to the relevant sector-specific guide contained in the government's guidance on working safely during coronavirus mentioned above.
The guidance is not the law but is nonetheless likely to be taken as the minimum you need to do to be compliant with the law. It must be read in conjunction with other health and safety laws and regulations, and any advice produced specifically for your sector by industry bodies.
Must we publish our risk assessment?
The law already says that significant findings from risk assessments must be written down if you have more than five staff. The guidance now also recommends that you publish your Covid-19 risk assessment on your website, and that all employers with over 50 workers will be expected to do so.
Do we need to do a risk assessment even if we are not reopening because everyone is working from home?
Yes, but it should concentrate on the homeworking risks. You can update it (after consultation) in due course to reflect your plans for re-opening.
How do we go about doing a satisfactory risk assessment?
The Health and Safety Executive (HSE) provides general guidance on how to do a risk assessment, which would need to be adapted for Covid-19 using the appropriate workplace guidance for your particular environment. In summary, the HSE recommends taking the following five steps:
- Identify the hazards in your workplace.
- Decide who might be harmed by those hazards and how.
- Evaluate the risks and decide on measures you can implement to minimise the risks.
- Record your findings and implement them.
- Review your risk assessment and update it as necessary.
What responsibilities do our employees have for their safety?
Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, and to co-operate with you to ensure that your rules are complied with. It is therefore important for you to educate and train your staff on the practices and policies you have decided to adopt.
Do we need to do any more than the government guidance as regards our staff?
Yes, potentially. You need to assess the risks presented by your own workplace to your own employees, as well as contractors and visitors, and you may need to put in place additional controls or measures to mitigate them. The guidance is not the same as the law so your legal duties will continue alongside, and in addition to, the guidance.
Should we be consulting employees or their representatives about the health and safety aspects of reopening or re-occupancy plans?
Yes. If you recognise a trade union, you should consult with your union safety representatives. Where workers are not already represented by union safety representatives, you have a statutory requirement to consult either employees or their elected representatives about health and safety, and in particular, the introduction of new measures that could substantially affect their health and safety. The HSE has produced guidance about this here and here. It is a criminal offence not to comply, albeit not the type of offence that the HSE has actively prosecuted in the past. Employees do not themselves have any kind of civil remedy for failing to be consulted over health and safety matters (although they can bring claims about training, as discussed below).
The first step is to check your health and safety policy to see if it says how you will engage with employees. Depending on any existing commitments in your policy, you may want to organise a body of employee representatives for this and other purposes (see our article on whether employers should set up a standing body for collective consultation). There is no set process for conducting elections and you might simply start by asking for volunteers.
You need to pay for any employee representatives to have such training as is reasonable in the circumstances. It is not clear that any training would be required for the purposes of consulting over the current situation, or indeed if any is available.
Consulting representatives can be easier and more effective than trying to consult employees directly, especially when consultation needs to happen remotely. If you are starting to prepare for reopening but not expecting an imminent return, now would be a good time to put in place a representative body. If you do not want to set up a representative body, or you are concerned about the time it might take to do so, you can consult employees directly. To do this effectively without being able to hold physical meetings, you would need to consider open 'town hall' meetings using apps such as Zoom, or other online employee survey tools.
You may wish to consider delaying implementing any return to work plan until you have consulted employees. Not only does this mitigate your legal risk, but it is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.
Importantly, employees who are on furlough are not allowed to do any 'work' for the employer that furloughed them (although they can carry out training). The latest HMRC furlough guidance states that HMRC will not regard the duties and activities of employee representatives as 'work', as long as the representatives do not provide services to or generate revenue for or on behalf of your organisation or a linked or associated organisation. There is an argument that acting as a health and safety representative is more likely to be considered work than acting as a representative for collective redundancies, although the HMRC guidance does not draw this distinction.
What if we are accused of breaching the government workplace safety guidance?
You could face a claim from an employee or third party (such as a visitor or contractor) who claims to have suffered injury as a result. This might be a claim that the employee has contracted Covid-19, but it could also be a claim that they have suffered some other kind of injury such as stress-related illness. Employees might also refuse to come to work (see below).
In serious cases, you could face a criminal prosecution for breaching health and safety legislation by failing to take reasonably practicable steps to ensure employee safety. Directors, managers and officers can also be found guilty of any offence which was committed with their consent or connivance, or which is attributable to their neglect. Responsibility for prosecuting offences falls to the HSE or relevant local authority. They will generally not look to launch a criminal prosecution unless there is clear evidence that the health and safety breach caused serious harm and that there are public policy reasons to prosecute.
Can we be liable if an employee contracts Covid-19 at work?
Yes, potentially, but only if the employee can show both of the following:
- You, as the employer, were negligent in some way, or one of your employees acted negligently in the course of their employment so that you are found vicariously liable.
- The negligence caused or materially contributed to the claimant contracting Covid-19.
An employee with mild symptoms is unlikely to bring a claim. In practice, claims are most likely to come from vulnerable employees whose symptoms may be more severe.
In most cases, it will be difficult in practice for employees to establish on the balance of probabilities that exposure at work was the cause of them contracting the virus. They could have picked up the virus anywhere. Even if an employee does contract Covid-19 at work, you will not be liable unless they can also show that this was the result of negligence, i.e. a breach of your duty of care or statutory responsibilities.
So, to ensure that you are in the best possible position to defend a negligence claim, regulator investigation or criminal prosecution, you need to make sure that you and your workforce are complying with the government guidance and taking any additional precautions required. This includes monitoring how employees are behaving towards each other and intervening quickly if they are not acting appropriately. It's not enough to put in place systems if employees are not complying with them.
Also note that Covid-19 is now a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) so exposure at work would also trigger separate reporting requirements.
What about insurance?
You should already have Employers Liability Insurance in place to cover the risk of claims from employees about injuries or illnesses suffered in the course of employment. Your public liability insurance should cover claims from visitors, customers or others who use or access your premises. You should check the scope of your cover, and whether you have any specialist health and safety insurance in place, including claims against directors. Remember to keep your insurers up to date if any claims are threatened.
What processes do we need for employees to flag concerns about potentially unsafe practices at work?
You might consider setting up a special process for employees to flag concerns that your health and safety measures are not working or are not being observed.
An alternative is to use existing whistleblowing hotlines. A complaint that 'the health and safety of any individual has been, is being or is likely to be endangered' counts as a protected disclosure for the purposes of whistleblowing legislation and you may already encourage concerns on this issue to be raised through whistleblowing or 'speak up' policies.
Whichever process you use, make sure that:
- Someone is given responsibility for investigating the concerns.
- There is a defined escalation process. Managers are clear about the process for dealing with concerns and can signpost it to employees.
- You take any steps required to address legitimate concerns, e.g. by adjusting your health and safety approach or disciplining individuals who have behaved irresponsibly.
- Nobody takes retaliatory action against any employee who complains (since they are likely to be protected as a whistleblower, even if they did not use the whistleblowing policy).
- You comply with applicable data and privacy requirements.
What policies should we have in place?
You will need to revisit and probably expand your existing health and safety policy to cover your approach to controlling the risks presented by Covid-19. You'll also need a process for handling employee complaints and concerns about health and safety (see above).
Think about whether your existing homeworking, whistleblowing and disciplinary policies also need any amendments to ensure consistency with your new policies.
What Personal Protective Equipment (PPE) should we provide? Must we supply facemasks?
You must first assess the risk and see if it can be eliminated entirely. If that is not reasonably practicable, you will need to look at a range of methods which can minimise the risk of harm. However, the government's guidance emphasises that:
- Covid-19 risks need to be managed through social distancing, hygiene, screens and fixed team or partnering, not through the use of PPE.
- Workplaces should not encourage the precautionary use of extra PPE.
In the event that your risk assessment did show that PPE was required (unlikely for any office), you would need to provide it.
There is a distinction between face coverings and PPE. There are some circumstances when the guidance suggests that wearing a face covering may be marginally beneficial as a precautionary measure. Face coverings can be made at home. Employers should support employees in using a face covering safely if they choose to wear one, but should not rely on them on as a risk management strategy and should not deplete supplies of PPE including surgical masks which are needed by the NHS and care workers.
Note that the government guidance on safe travel says that people should wear a face covering if they need to use public transport.
Do employees have a right to be notified if a colleague has suspected or diagnosed Covid-19?
No, there is no specific right. You owe the colleague a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other employees. Try to balance these obligations by warning individuals who have been in contact with any suspected or confirmed case of Covid-19 without revealing the name of the colleague and, if that is not realistic, do not reveal any information any more widely than necessary.
Are we legally responsible for an employee's journey to and from work?
Employers do not have any statutory legal responsibility for an employee's journey to the workplace. Health and safety legislation covers only the risks which employees may be exposed to at work, not the risks they may face whilst travelling to and from work. The government guidance covers work-related travel, but not travel to and from work, although it does say that employers should stagger arrival and departure times to reduce crowding into and out of the workplace and provide facilities for alternative ways of travelling, such as by cycling.
However, in this unusual situation where the public health risks associated with using public transport are so significant, the courts might conclude that your implied duties of care, and to maintain trust and confidence, mean that you should take some account of the risks associated with an employee's commute. In any case, leaving aside the legal position, commuting by public transport will be of very serious concern to your employees and the capacity of the public transport network is going to be very restricted, so there are good reasons to do what you can to ensure that employees can get to work, and can do so in the safest way possible. This could involve adjusting hours, providing extra parking and taking steps to enable more cycling. The government has issued guidance on safe travel which employees should consider before commuting.
In certain circumstances, employees have a statutory employment right not to attend a workplace if they have a reasonable belief that they are in serious and imminent danger, and it is less clear if this applies to the dangers of travel. We look at this right in our FAQs on staffing decisions when reopening workplaces.
How do we avoid discrimination in our return to work plans?
First, check that your return to work plans don't disadvantage certain protected groups, e.g. that your arrangements for moving around the building don't disadvantage the disabled and that any proposed changes to hours don't disadvantage women or employees observing Ramadan. Consider the impact on protected groups in practice, even if the reason for the impact is unclear. If you identify any disadvantage, consider what adjustments you could make. If your proposed plans are a proportionate means of achieving a legitimate aim, and there are no realistic less discriminatory alternatives, any discriminatory impact will be justified.
Second, many individuals who are classified as vulnerable to Covid-19 will also qualify as disabled within the meaning of the Equality Act, and your duty of reasonable adjustments may require you to transfer them into safer alternative work or even allow unpaid leave. See our FAQs on staffing decisions when reopening workplaces.
The third and most difficult issue relates to the links between vulnerability and age, gender and ethnic origin. The guidance refers to employers involving and communicating appropriately with workers whose protected characteristics might 'expose them to a different degree of risk'. It's not clear who this is referring to, but it might include older men and ethnic minority workers based on the emerging reports about the impact of Covid-19. This raises potentially insoluble problems for employers. On the one hand, employers want to ensure that they are not indirectly discriminating against any group, but on the other hand, employers who prioritise certain groups for safer work could face direct discrimination claims from other groups. Employers need to keep the medical evidence and government guidance under review but should currently try to avoid making decisions purely on the basis of protected characteristics, except in relation to pregnancy and those over the age of 70 (who are included in the list of vulnerable groups).
How should we protect our staff from abuse by visitors and customers?
Sadly, this is a real problem for many of the retailers who are already operating. Some employees are experiencing abuse from customers who are angry about lack of stock or about the behaviour of other customers. A failure to deal with this may be a breach of the implied term of mutual trust and confidence, leading to constructive dismissal claims. In addition, your duty of care to protect your employee's health and safety can extend to protecting them from customer abuse.
Where abuse by customers is related to the employee's gender, race or other protected characteristic, you should take account of the detailed guidance produced by the EHRC. The law that made employers explicitly liable for third-party harassment was repealed several years ago (although its re-introduction is under consideration), but this guidance explains why employers should nevertheless ensure they respond robustly to this sort of behaviour.
Make sure that managers and other employees know they should not put themselves in personal danger resulting from customer abuse. All managers should have received training on how to deal with this type of situation, including calling the police in certain circumstances. Posters warning customers that any harassment or violence towards staff will not be tolerated can also be helpful.
What is the position if our business or our employees are based in Scotland, Wales or Northern Ireland?
Public health matters can be decided independently of the UK government by the local governments of Scotland, Wales and Northern Ireland, but employment law can only be decided independently in Northern Ireland. This creates scope for complexity.
The guidance is intended to help all businesses in the UK and has been issued after consultation with the devolved nations. However, it is possible that Scotland, Wales and Northern Ireland will set different standards and publish their own guidance, which businesses based there would need to comply with.
However, at least for now the position on leaving home for work is consistent. The Westminster government's position is that employees should work from home and only travel to work if they cannot work from home. This reflects the position across the UK and it means that employees working in England but living in either Scotland or Wales can already travel for work across the border if they cannot work from home (or in Wales if it is not reasonably practicable to do so).
Medical testing and contact tracing
Can we insist on taking electronic temperature readings at entry points? Can we insist on employees taking medical tests?
The government workplace safety guidance does not include temperature checking or medical testing in the list of steps employers should necessarily be taking. However, reflecting the reality that many employers are actively considering these extra precautions, the Information Commissioner's Office (ICO) has just released data protection guidance on this issue.
Employers can process some health information for the purposes of complying with health and safety duties and their duty of care towards staff, but this needs to be both necessary and proportionate. The assessment of what is necessary and proportionate is crucial. In some workplaces temperature or medical testing may be necessary and proportionate, in others it might not be if there are less invasive measures that would be sufficient. (These might include requesting that people take their own temperature before attending the office, giving clear guidance about when not to come in and implementing rigorous health and safety practices.)
If you are going to take temperature readings or get employees to take medical tests there are various things that can be done to mitigate the data protection risks including:
- Be 100% transparent with workers about what use will be made of any data (i.e. produce a standalone privacy notice or update existing notices).
- Don't retain the information for longer than needed. For example, do the temperature check on access and delete the data, unless preventing entry is necessary (in which case the reasons for this should probably be recorded).
- For anything that is stored, use for no other purposes and restrict access to a very small number of people with a legitimate reason for such access.
- Make sure you train any vendors who are carrying out the testing for you and put in place agreements about how they will process the data.
- Carry out a data protection impact assessment setting out clearly why any measure is necessary for the specific workplace (which should include why alternative measures are not sufficient).
Can we make employees download a contact tracing app?
We explain the position with contact tracing apps in more detail in our article Is the use of contact tracing apps the answer for organisations to get out of lockdown?
Contact tracing apps will alert users if they have been in contact with someone who has tested positive for Covid-19 and then give them advice (e.g. 'self-isolate'). Depending on the circumstances and the design of the app when it is released in the UK, it is likely to be lawful to require employees to tell you if they've received an alert from the app but it is more problematic to require use of the app in the first place.
If you provide a device to an employee then, in our view, you can require them to download a contact tracing app. Requiring employees to download an app onto their personal device is trickier, although you may already have Bring Your Own Device or other policies that could be relied on here and indeed it might be possible to rely on employees' health and safety obligations to other colleagues to mandate the downloading of the app. Even once the app is downloaded, however, there may be arguments on both sides as to whether it is necessary and proportionate to require employees to use it. The ICO and other EU authorities and data privacy regulators are currently taking the stance that usage must be voluntary, but we expect further guidance when the app is released in the UK (and other apps elsewhere in Europe).
Does using a contact tracing app make it more likely that an employee can claim that they contracted Covid-19 at work?
No, it should not do so, because the app will not trace where contacts were made. Even if it was possible to trace contact between devices, the UK government app which is currently being trialled is not collecting names or other personal information including specific location data, only the first part of an individual's postcode. So, in the unlikely event that an application was made to the NHS to disclose the contact data, it would be very unlikely to show that someone was infected at work.
Which employees should come back to work?
The issues in relation to deciding which employees should stay at home and what happens if employees do not want to return to work are covered in our FAQs on staffing decisions when reopening workplaces.
Adjusting hours and responsibilities
Can we reduce an employee's hours and pay if a phased return means they need to work shorter hours?
This sort of arrangement, even if only temporary, would require you to obtain the employee's agreement to the reduced hours and pay (unless you have a clear right in the employment contract to impose the change unilaterally). Reducing hours and pay is also covered in our FAQs on workplace restructuring post Covid-19, particularly employers' collective consultation obligations where 20 or more employees are affected, which could potentially apply in this type of situation.
Can we change an employee's duties/hours to cover the duties of other employees who remain absent?
Many contracts of employment give employers express powers to vary duties and hours. Employers probably have a limited right to make small changes to hours and duties as part of the employees' implied duty to obey lawful and reasonable instructions. It is difficult to say how far this implied right would extend, and for that reason employers should be wary of relying on it. Even if there is not a contractual right, employers could still change employees' hours and duties with their agreement.
Can we temporarily change an employee's working hours to stagger working hours, for example from 9am-5pm to 8am-4pm?
This could certainly be done with the employee's agreement. If it is not possible to obtain consent, you could argue that a temporary and relatively minor change of this sort comes within the employee's implied duty to comply with a reasonable management instruction. As mentioned in the answer to the previous question, the scope of this implied term is uncertain and you should be cautious about relying on it. You should also consider the individual's particular circumstances and whether the change could potentially have a discriminatory impact on them.
What if an employee's hours increase as a result of additional safety measures?
It is possible that some measures to enforce safe distancing and hygiene will result in the lengthening of an employee's day because, for example, they need to queue to get access to changing rooms or carry out extra procedures. Some employees may be entitled to extra pay for these extra hours and it is particularly important to ensure compliance with national minimum wage legislation.
Firm: Lewis Silkin LLC
Originally published 18 May 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.