COVID-19: returning to work - Health & Safety considerations - UK Government's COVID-19 'Recovery Strategy' and 'Secure' Guidelines

The indicative dates for new parts of the Recovery Strategy to be implemented are as follows, noting that the date for Step 1 applies to England only and that all these dates are contingent on meeting certain threshold tests set by the UK Government:

STEP 1: 13 May 2020, anyone who cannot work from home should now consider travelling to work if their workplace is open and can meet the new Secure Guidelines. Examples given include food production, construction, manufacturing, logistics, distribution and scientific research laboratories. There are exceptions for those workplaces such as hospitality and non-essential retail which, during this first step, will remain closed. It is, however, stressed that for the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible.

STEP 2: 1 June 2020, non-essential shops will be opened, subject to those retailers being able to follow the new Secure Guidelines. Hospitality and personal care are still prohibited from re-opening. Potential for some schools to re-open. More local transport to be opened.

STEP 3: 4 July 2020, if all the five tests are met and there is scientific advice that suggests further changes are acceptable, the UK Government plans to reopen some other businesses such as pubs, restaurants, hairdressers, beauty salons, places of worship and cinemas (subject to them meeting the Secure Guidelines).

For businesses and employers, some key points from the Recovery Strategy include:

• that when travelling everybody (including critical workers) should continue to avoid public transport wherever possible (through the use of cycling, walking or driving, avoiding peak travel times if possible). To facilitate this, it is suggested that employers should consider staggering working hours and expanding bicycle storage, car parking and changing facilities;
  
  
• people are now strongly urged to wear a face-covering in enclosed spaces where social distancing is not always possible, and they come into contact with others that they do not normally meet (e.g. public transport) – specific guidance on such face-coverings is provided here;
  
  
• certain workers who cannot work from home should, from Wednesday 13 May 2020, travel to work if their workplace can open safely and in line with the Secure Guidelines (taking into account restrictions that may prevent them doing so such as childcare arrangements and transport restrictions);
  
  
• individuals should continue to keep their distance from people outside their household (two metres) and should not be too close to other people for more than a short amount of time;
  
  
• it remains essential to keep the hands and face as clean as possible. Hand sanitiser should be carried when travelling and applied where available. Clothes should also be washed regularly, and it is implied that workers coming into contact with others during their shifts should consider washing their clothes more often (noting that actually changing clothes in workplaces is considered normal only where there is a high risk of infection or there are highly vulnerable people, such as in a care home); and
  
  
• transmission can be limited in the workplace by reducing the number of people that any given individual comes into contact with regularly. Employers and businesses can support this where practical by changing shift patterns and rotas to keep smaller teams. Ventilation should also be increased by employers where possible.

For businesses and employers, one of the most important aspect of the Recovery Strategy is the need to embed the Secure Guidelines.

The new Secure Guidelines were developed following a consultation period with approximately 250 businesses, unions, industry leaders and devolved administrations. This guidance applies to businesses currently open. This also includes guidance for shops which the Government believes may be in a position to begin a phased reopening at the earliest from the 1 June. Guidance for other sectors that are not currently open will be developed and published ahead of those establishments opening to give those businesses time to plan.

At this stage, the Secure Guidelines have been split out to cover specific business sectors, which include:

• 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
  
  

Application

The above sector specific guidance documents are all based on the 5 key principles that the UK Government is strongly encouraging employers and sites to implement  as soon as is practical (taking into account any further guidance that may have been release as and when businesses re-open).

Each guidance note is caveated by stating that it is non-statutory guidance to be taken into account when complying with existing obligations and that it does not supersede any legal obligations relating to health and safety, employment or equalities. That said, they represent a minimum baseline to be followed by an employer in meeting its duty of care.

It will be important for all employers to carefully consider the relevant guidance, tailor their return to work strategy to specific workplace environments and clearly document and communicate these steps.  Some specific additional points to note:

• Employers and businesses are asked to take into account agency workers, contractors and other people, as well as their employees.
  
  
• A downloadable notice is included in each guidance pack, which employers "should use" to show "employees, customers and other visitors to their workplace" that they have "complied with the government’s guidance on managing the risk of COVID-19."
  
  
• There is a clear legal obligation to carry out an appropriate COVID-19 risk assessment. This risk assessment must be done in consultation with workers, unions and/or other relevant stakeholders. Again, this should be documented and communicated (as necessary).
  
  

Five Key-Points

1. Work from home, if you can

• Employers should take all reasonable steps to assist employees to work from home.
  
  
• Those that cannot conduct work from home and whose workplace has not been told to remain closed, should go to their place of work.
  
  
• Employers should consult with employees about when their workplace is expected to be open.

2. Carry out a COVID-19 risk assessment, in consultation with workers, trade unions and/or other relevant stakeholders

• In accordance with H&S and employment legislation, employers are required to carry out a COVID-19 risk assessment in consultation with relevant persons
  
  
• Employers should publish "if possible" the results of their risk assessment on their website and the government expects all business with over 50 employees to do so.
  
  
• Such risk assessment should be undertaken with a consideration of applicable official guidance and adhere to Covid-19 Secure guidelines

3. Maintain 2 metres social distancing, wherever possible

• Employers should modify or re-design workspaces to maintain 2 metre distances between employees, this can be assisted by staggering start times, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in break rooms.

4. Where people cannot be 2 metres apart, manage transmission risk

• Employers should consider the use of barriers in shared spaces, creating workplace shift patterns or fixed teams that minimise the number of people in contact with one another, or ensure that colleagues are facing away from each other.

5. Reinforcing cleaning processes

• Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.

Key stakeholders who supported the UK Government in drafting the guidance have provided some initial commentary, including the Health and Safety Executive ("HSE").

In the Prime Minister's response to questions on 11 May 2020 in Parliament, it was stated that the HSE will be enforcing the new guidelines and that there will be spot inspections, suggesting that failure to comply with the applicable guidelines may result in regulatory action.  An additional  £14m of funding has been provided to the HSE to assist with this.

Jonathan Geldart, the Director General of the Institute of Directors commented that "directors can use [the Secure Guidelines] to inform their risk assessments for operating in this pandemic," however, that "ultimately, the decision lies with a company’s directors, and they need to feel comfortable they can operate safely." 

Beyond managing potential legal liabilities, building confidence within the workforce and with customers will be paramount.  Additional action and steps may well be required to manage these concerns.

For the sector and premises specific H&S guidance please review the specific sectoral guidance on the BEIS platform here.

A more detailed briefing on potential legal health and safety risks of returning to work and other considerations for employers and businesses can be found here. This briefing will be subject to updates as and when new guidance is released by the UK Government.

Please note this briefing does not constitute legal advice and no reliance should be taken upon it. We must also stress that this is a rapidly evolving area and as such this briefing only provides a summary of general guidance available at the time of writing. Please continue to check the latest Government guidance.  Of course, if you require any formal assistance, please do not hesitate to contact us.