The abrupt emergence of COVID-19 last year disrupted normal working practices and resulted in employers having to be more creative about effective ways to work, including adopting flexible working methods.
As lockdown restrictions are now starting to ease, the matter of returning to the workplace is on the minds of many employers, who must be aware of the changing advice and restrictions and ensure the health and wellbeing of their staff, whilst simultaneously seeking to develop strategic business plans.
What is the Government’s current advice?
It is important to note that despite the easing of restrictions, current Government advice is that everyone who can work from home should still be doing so and employers should support their staff to continue working from home.
It was hoped that this advice might be updated on 21 June 2021, when it was previously thought that social distancing limits would be lifted, but given the outbreak of the Delta variant, the lifting of restrictions has now been delayed until at least 19 July 2021.
Notwithstanding this, employers should start to put in place an effective plan that will safeguard health and wellbeing when employees start to return to work (if they have not already done so).
Do employers have health and safety obligations?
Employers have both a common law and statutory health and safety duty, the latter of which provides they must generally “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees” (Health and Safety at Work Act 1974, Section 2). This naturally includes risks from COVID-19.
In order to do this, they will have to take into consideration (amongst other factors):
- The size and nature of the workplace;
- The way in which staff travel to and from work and whether they are dependent on public transport; and
- The number of staff who are vulnerable or who live with vulnerable people.
Health and Safety in the workplace is highly regulated and enforced by the Health and Safety Executive (“HSE”) which provides detailed guidance for employers on making the workplace “COVID-secure” during the pandemic.
An employer is required to conduct a risk assessment for containment of COVID-19 at the workplace prior to employees returning. The assessment is done by completing a Risk Assessment Form in which you must:
- identify any work activity or situations that might lead to transmission of the virus;
- consider who is at risk;
- decide how likely it is that someone could be exposed; and
- act to remove that activity or situation, or if that isn’t possible, control the risk.
A business with fewer than five employees does not need to write down its risk assessment, although it is normally advisable to do so anyway.
A risk assessment may lead to certain measures being adopted, such as reconfiguring workspaces to ensure social distancing is implemented, phased return of the workforce, possible changes to working hours to reduce the risk of exposure, increased ventilation, cleaning and sanitary measures, and provision of PPE.
Businesses may also consider systematically testing their staff for the virus (as is already being done with essential workers and members of their household). Although strongly encouraged, testing in the workplace is not a legal requirement and so neither workers nor members of their household can be forced to take a test. See the ACAS guidance on workplace testing for more information.
In order to ensure businesses are “COVID-secure”, HSE is carrying out spot checks in all types of businesses.
Talking to Workers
When it is safe to return to the workplace, employers should talk to and consult with their staff as soon as possible about returning to work.
Employers should discuss any measures they are (or will be) taking to prevent the spread of the virus and should also discuss any concerns workers might have about returning to work (including their travel to work).
This is an opportunity to ensure that staff are aware of the health and safety steps an employer is implementing.
Such conversations may be especially important for any employees who have been furloughed or who are vulnerable to the virus.
Health & Safety Policies
An employer with five or more employees must have a written statement setting out its general health and safety policy with respect to its employees and organisation, and the arrangements for carrying out the policy.
Following the risk assessment, employers may need to review and update their policies to ensure that they include any new measures taken in light of COVID-19.
The health and safety policy must be brought to the attention of staff and so they should be reminded of the policy on their return to work, particularly where it has been updated.
The Government may lift its “work from home” policy on 19 July 2021 and so employers should start to think about conducting a new risk assessment of the workplace in line with COVID-19, updating any health and safety policies and communicating with their workforce, if they have not already done so.
Even once restrictions have eased, the pandemic has largely demonstrated the effectiveness of working from home and evidence suggests that the majority of employers are considering adopting hybrid working, which involves a mixture of both home and workplace-based working.
Many welcome the idea of a hybrid work model, although some concerns have been raised that other forms of flexible working arrangements have dropped since the onset of the pandemic.
This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Helena Antoniou or write to us using the contact form below.