Thursday, February 4th, 2021
James Collier looks at current regulations and guidance in place regarding the maintenance of a Covid safe workplace.
The Health Protection (Coronavirus, Restrictions) (No. 3) and (All Tiers) (England) (Amendment) Regulations 2021 (SI 2021/8) came into force on 6 January 2021 and provide for a national lockdown in all areas of England, placing all of the country into Tier 4 of the tiering system.
Tier 4 provides that no-one living in a Tier 4 area can leave, or be outside of their home, without a reasonable excuse, (Schedule 3A, Part 1, paragraph 1(1), All Tiers Regulations, as amended by The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020). However, it is a reasonable excuse to leave home in a Tier 4 area where it is reasonably necessary for the purposes of work, or to provide voluntary or charitable services, and it is not reasonably practicable to work or provide those services from home (paragraph 2(5)(a), All Tiers Regulations, as amended). This exception applies where the workplace remains open and includes jobs that involve working in other people’s homes.
A “reasonable excuse” includes where it is reasonably necessary for a person to leave or be outside of their home for the purposes of work, or to provide voluntary or charitable services where it is not reasonably possible for them to work, or to provide those services from home (Schedule 3A, Part 1, paragraph 5(a), All Tiers Regulations, as amended). The Regulations provide for work – “you can only leave home for work purposes where it is unreasonable for you to do your job from home, including but not limited to people who work within critical national infrastructure, construction or manufacturing that require in-person attendance.” The National Lockdown Stay at Home Guidance, (the “Guidance”) also states that people working in essential public services, people working in childcare or education and people who need to work in other people’s homes (such as nannies, tradespersons and cleaners) are included in the groups who should continue to attend work.
All other workers and employees should be facilitated to work from home if they can do so effectively. The Guidance encourages employers and employees to discuss their working arrangements, noting that employers should take “every possible step” to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working. Where workers cannot work from home, employers should take steps to help them to avoid busy times and routes on public transport.
What steps should an employer take to ensure a COVID safe workplace and to protect their workers from coronavirus infection whilst at work?
The UK Government Advice on Working Safely During Coronavirus can be accessed here and includes specific advice to 14 particular work sectors including construction, office work, close contact personal services, labs and research facilities, amongst others. The priority steps an employer should consider and address are provided at the top of each section within the Advice.
Using the Advice to determine what steps an employer should take to provide a COVID safe workplace in an office environment, the Advice makes clear that an employer is expected to:
1. Enable staff who can work effectively from home to do so.
2. Consider the maximum number of people who can be safely accommodated in person on site.
3. Consider establishing smaller working teams or groups that can attend the office on different days.
4. Plan for a phased return to work for people safely and effectively.
5. Monitor the wellbeing of people who are working from home and help them stay connected to the rest of the workforce, especially if the majority of their colleagues are on-site.
6. Keep in touch with off-site workers on their working arrangements, including their welfare, mental and physical health and personal security.
7. Provide equipment for people to work at home safely and effectively, for example, remote access to work systems.
8. Redeploy those workers who are clinically extremely vulnerable to roles which can be effectively performed from the worker’s home.
9. Take additional precautions when managing those who might be at an increased risk of serious complications of COVID infection – such as older men, those with high BMI or a diabetes diagnosis, or workers from a BAME background.
The Advice also provides guidance on steps an employer should take to provide a COVID safe workplace, such as improving ventilation, applying social distancing in the workplace, managing visitors and contractors on site, cleaning the workplace and personal protective equipment (PPE) and face coverings. For example, workers are not required to wear PPE, including face masks, unless they work in a customer facing role and are not able to be socially distant from their customer or client.
It should be noted that different advice and considerations are provided for each section of business activity, for example specific advice is available to schools and colleges.
All employers should carry out a risk assessment, both as part of their organisational response to providing a COVID safe work place, and also on an individual basis with each employee, so that a full detailed assessment is carried out for each space within the workplace and for each employee or worker that uses that space. The Health and Safety Executive provides template risk assessments for use, which can be accessed here.
The organisational risk assessment should be accessible to all workers, who should be consulted on and informed of the organisational risk assessment content. The individual worker’s risk assessment should be kept securely in the individual worker’s personnel file.
ACAS has also produced guidance for employers on “Working Safely During Coronavirus”, which promotes open and honest consultation with employees as the circumstances change. The ACAS Working Safely During Coronavirus guidance also provides advice on managing a case of confirmed or suspected coronavirus in the workplace and coronavirus testing at work, and can be accessed here.
Employers may decide to use the Coronavirus Job Retention Scheme (Flexible Furlough) in managing these workplace restrictions and decide to place staff on furlough during the most recent national lockdown; the scheme remains available currently until 31 April 2021. For further information, please see our recent article on the Flexible Furlough Scheme here. Alternatively, an employer may consider discussing and agreeing with workers that they take periods of paid and/or unpaid leave.
The regulations in place governing a covid safe workplace are complex with the only certainty being that the situation will rapidly change along with community rates of coronavirus infection. Hanne & Co’s Employment Law Department can assist employers in identifying their COVID safe workplace conditions, taking appropriate steps to ensure compliance with the Regulations and Guidance, and in ensuring that their policies and procedures are updated to reflect the changing COVID19 circumstances.
We can also assist employees who may have claims for health and safety breaches, unfair dismissal, disability discrimination and unauthorised deductions from wages, amongst others should the employer fail to take steps to provide a COVID safe workplace, as per UK Government Regulations and Advice.
And if you have been told that your firm is unable to retain you, we are able to provide accredited mediation services between you and your employer.
Hanne & Co provide cost effective and responsive employment law legal advice and services to employees and employers. Please do not hesitate to contact us on 020 7228 0017, where we can book you in for a free half hour consultation call.
James Collier is a Senior Associate in Hanne & Co’s Employment Law Department.