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Coronavirus – FAQs on managing a safe return to work

25 September 2020

Employers are facing many employment law issues as the guidance on working safely during the Covid-19 pandemic continues to evolve. These FAQs cover employers’ health and safety obligations, medical testing, contact tracing, and adjusting hours and responsibilities.

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.

The latest position is as follows:

  • On 22 September the government changed the guidance on office workers. The guidance is now that office workers who can work effectively from home should do so over the winter. For more guidance on which employees should now be working from home, see our FAQs on staffing decisions when reopening workplaces.
  • From 28 September, employers must not knowingly require or encourage someone who is being required to self-isolate to come to work. In England, it is an offence for an employer to knowingly allow staff (including agency workers), who are required to self-isolate, to attend the workplace or any other place in connection with their job. Employers in breach of this provision can be fined.
  • The government has published and expanded its various Covid-secure sector-specific guides on working safely during coronavirus. These cover a range of different types of work from offices through to shops.

Health and safety at work

If our workplace is open, 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, you 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 consult employees or their representatives about our workplace safety plans?

Yes. Government guidance states that the decision to return to the workplace must be made in meaningful consultation with workers. It goes on to state that a meaningful consultation means engaging in an open conversation about returning to the workplace before any decision to return has been made, and should include a discussion of the timing and phasing of any return and any risk mitigations that have been implemented.

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 - 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 – see 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 insight 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 and you could consider putting 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.

Consulting employees not only mitigates your legal risk, but is also likely to flush out issues and prevent problems when it comes to putting your plans into practice.

Employees who are on furlough are not allowed to do any “work” for the employer that furloughed them and employees placed on flexible furlough must not do any work during the hours you record them on furlough (although they can carry out training). The 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 or customers etc. 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?

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.

Staff working in certain settings may be required to wear face coverings and/or visors. 

Should employees wear face coverings at work?

We look at the position on face coverings in more detail in our article on face coverings and the workplace. In most settings, face coverings are not mandatory for employees. However, the government has issued general guidance that face coverings should be worn in indoor places where social distancing may be difficult and where people will come into contact with people they do not normally meet, and employers should support employees in their wearing of face coverings if they wish to wear them. However, employers should not be relying on face coverings as a risk management strategy.

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?

We look at this question in more detail in our Insight article on "Does an employer's duty of care extend to commuting to work?"

Employers do not have any statutory legal responsibility for an employee’s journey to the workplace. Health and safety legislation (such as the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999) 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 Insight article and our FAQs on staffing decisions when reopening workplaces.

How do we avoid discrimination in workplace safety 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. 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 latest guidance refers to the Public Health England report which shows that some groups of people may be at more risk of being infected and/or an adverse outcome if infected. Those higher groups include those who: are older males; have a high body mass index; have health conditions such as diabetes; are from some BAME backgrounds. 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 the over-70’s (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 has been published by the Westminster government but is intended to help all businesses in the UK and has been issued after consultation with the devolved nations. Scotland, Wales and Northern Ireland have, however, published their own (broadly similar) guidance, with which businesses based there would need to comply. Employers with employees based in Wales should note that it is a legal requirement for employers to take all reasonable measures to maintain physical distancing.  

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 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).

For more details see our Insight article Workplace testing – guidance for employers from our specialist data protection group.

Can we insist on employees taking an NHS test if they have symptoms?

Anyone with Covid-19 symptoms can now ask for an NHS test to check if they have the virus. If someone has the test and it is negative, this may enable them to return to work more quickly as soon as they are feeling better.  Knowing if the employee has tested positive or negative may also help employers to track cases within the workplace, manage health and safety risks and re-assure or warn colleagues as appropriate. However, the NHS website warns that they cannot guarantee a test, as it depends on how many tests are available each day in different parts of the country. It may also take some time to receive the results of the test, in which case the ten day self-isolation period may have expired and the employee could return to work anyway. The employer will also need to act quickly before knowing the test results to clean any potentially contaminated areas and warn potentially affected colleagues (without revealing the employee’s identity if possible).

An employer can encourage employees to take the tests now that they are available, but there are data protection risks in insisting that employees take tests and reveal the results.  As with medical tests more generally, an employer which asks for information about NHS tests will be processing health information and should only do so if necessary and proportionate (see the previous question).  Requiring the employee to take an invasive test simply so that they can potentially return to work a few days earlier could be disproportionate, but the employer may be able to justify its policy on the basis of the need to safeguard the health and safety of others in the workplace.  As with taking temperature readings, If you are going to require employees to take tests then it is important to do everything you can to minimise the data protection risks.

Can we make employees download a contact tracing app?

We explain the position with contact tracing apps in more detail in our insight article Is the use of contact tracing apps the answer for organisations to get out of lockdown?

The NHS Covid-19 contact tracing app was released in England and Wales on 24 September 2020 as part of the government’s NHS Test and Trace service. The app will alert users if they have been in contact with someone who later tests positive for Covid-19 (and who has chosen to alert users) and then give them advice (e.g. “self-isolate”). The app also allows people to report symptoms, order a test and check in to venues by scanning a QR code. It is likely to be lawful to require employees to tell you if they’ve received an alert from the app but as use of the app is voluntary 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 the contact tracing app. Requiring employees to download the 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, it may be difficult to require employees to use it and government guidance is that employers cannot force their employees to use it. 

Does using a contact tracing app make it more likely that an employee can claim that they contracted Covid-19 at work?

If a venue has an official NHS Covid-19 QR code poster this can be scanned with the NHS Covid-19 app. If other people at the venue at the same time (which could include visitors or other employees), later test positive for Covid-19, an employee may get an alert to let them know. The app notification will not, however, mention the name of the venue, it will just let app users know that they may have come into contact with Covid-19 and provide them with public health advice.

Therefore it should not make it more likely that an employee can claim that they contracted Covid-19 at work. Even if it were possible to trace contact between devices, the app will not collect 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.

What are our obligations with regard to test and trace?

The NHS Test and Trace service helps trace close recent contacts of anyone who tests positive for Covid-19 and, if necessary, notifies them that they must self-isolate at home to stop the spread of the virus. Government guidance states that employers should support workers who are told to self-isolate and must not ask them to attend work. In England, it is an offence for an employer to knowingly allow staff (including agency workers), who are required to self-isolate, to attend their workplace or any other place in connection with their job. There is no restriction on requiring staff in these circumstances to work from home. Employers in breach of this provision can be fined based on a sliding scale, starting at £1,000 (increasing for repeat offences). There is also a legal requirement for both employees and agency workers to notify their employer that they are required to self-isolate, and for how long. Employers should also keep a record of all staff working on their premises and shift times on a given day and their contact details for 21 days. 

Adjusting hours and responsibilities to ensure safe working

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. 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.

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