With some children in some areas returning to some schools this week (and some not), the journey out of Lockdown is feeling modest, particularly in the backdrop of scientific advice that this may be too much, too soon.

However the latest stats from the Office of National Statistics as at 29 May make for some context.

The headlines are:

  • More people have left their home in the last week, with 90% of adults saying they had left for any reason compared with 86% in the previous week.
  • The most common reasons for leaving home continue to be: essential shopping, exercise, work and medical need; however, leaving to meet with others in a public place has seen the largest increase in the last week.
  • Over 4 in 10 adults who had left their home (42%) had visited a park or public green space in the last week – with 36% of these saying they had met with family or friends from outside of their household.
  • Over 1 in 3 adults in employment (36%) said they had left their home to travel to and from work in the past seven days.
  • Almost 3 in 10 adults (29%) said they felt unsafe or very unsafe when outside of their home this week, compared with over 4 in 10 (41%) last week.
  • Almost 3 in 10 adults (29%) reported that they had used face coverings outside of their home in the past week, most commonly whilst shopping.
  • However, while two-thirds of adults (67%) said they were very or somewhat worried about the effect that the coronavirus (COVID-19) was having on their life now, this is down when compared with last week (72%) and continues the downward trend since data collection started  on 27 March.

In the light of this, it is vital for employers to make sure they have a clear perspective on the pre-opening steps required to get the place of work open and running gain.

We dealt with this in an overview a few issues ago, but I thought it  might be worth adding a little more detail in this week’s update.

What is the key thing to have done?

The key document to underpin any employers approach will be a detailed risk assessment.

There are resources to help including government sector specific guidance, but the following bullet points should form part of any comprehensive risk assessment:

  • Is the use of PPE necessary to enable your employees to carry out their duties safely? Do you need to implement specific training? For example, where the use of PPE is appropriate, employees will need to be trained in how to put it on and use it correctly.
  • How are you going to clean the workplace before people return and each day whilst the pandemic is ongoing?
  • Can you maintain social distancing at all times? Will this require you to rearrange workstations or set up plexiglass screens?
  • Do you need to reduce the number of employees that are permitted to come on site/into work at any given time?
  • Can employees work side-to-side rather than face-to-face?
  • Are you going to implement one-way systems?
  • Have you asked employees about their current state of health or that of members of their household?
  • Can you manage communal areas to ensure social distancing is maintained?
  • What is the most effective way to tell employees about the changes? Do you have processes do you have in place for employees to raise concerns?
  • Do you have a specific COVID-19 policy? If so, does it include a mechanism for raising concerns?
  • What will you do if an employee refuses to come back to work?

Do remember when looking at the above, that government guidance advises that when managing the risk of COVID-19, additional PPE beyond what you would usually wear is not beneficial and PPE should not be seen as an alternative to social distancing or a means of avoiding the need for physical barriers or re-arranged workstations.

Do also remember that if your organisation has more than 50 employees, the Health and Safety Executive (HSE) expects the results of your risk assessment to be published on your website. While this isn’t a statutory requirement and therefore no financial penalty for non-compliance, a failure to do so could have negative PR consequences or result in a disgruntled employee complaining to the local authority or the HSE.

Any report to the HSE may then prompt a visit which could lead to the HSE identifying areas of non-compliance which do have criminal penalties (such a failure could include the failure to carry out an adequate risk assessment).

What information do you ask employees to provide and how should it be treated?

Any information about whether anyone has symptoms of coronavirus or testing employees will be special category information for data protection purposes.

You will therefore need to consider:

  • If you have carried out a data protection impact assessment (DPIA)? This may be needed if you are asking about your employees health..
  • What legal ground you are relying on for the processing? In the private sector you are likely to be able to rely on the fact that the processing is necessary for performing or exercising obligations which are imposed on you in connection with an individual’s employment.
  • Whether you need to update your workforce privacy notice?

The ICO has released new guidance on employee testing, but this is still a tricky area to get right.

What about insurance?

Employers must have insurance to cover their liability for bodily injuries and illness suffered by their employees for at least £5 million. A typical employer’s liability policy will have few exclusions in the UK as this is a compulsory insurance and insurers will have an obligation to pay a claim. However, do remember that having insurance in place does not absolve employers of responsibility for any lack of employee protection, including – for example – the provision of PPE and safe distancing.

Check your policy carefully – it could be that the employer may have to repay the insurer if they have acted recklessly or if there is a fundamental breach of policy terms and conditions. Employers would be well advised to review the extent of cover and any specific terms and obligations to ensure these are being met.

How will you communicate any changes?

While these questions will form an essential part of your risk assessment, they are worth particular consideration here. When looking at any employee-facing policy, you need to make sure that employees are clear about what is required of them and that any potential sanction for non-compliance has been clearly communicated. With this in mind, employees ideally should be asked to sign to say that they have read and understood the new rules.

If you have existing worker representatives, engage with them to explain and, ideally, agree any changes. If you do not already have appropriate representatives in place and intend to put some in place these representatives need to be elected by the workforce. Otherwise you will need to consult with your entire workforce about the changes.

How about dealing with concerns or workers refusing to return to work?

Under government guidance, employees can contact their trade union or the HSE if they have concerns about the safety of their workplace. While a breach of the government guidance will not result in a financial penalty, a complaint to the HSE could result in an inspection and reputational damage. Making sure your grievance and whistleblowing policies are up to date and available would be useful including allowing investigations can and investigation meetings to be carried out by phone or video call whenever possible.

Please take advice before dealing with any employee matter so as to take into account; what any unfair dismissal protection and fair procedure would be ; whether the raising of a concern would be a qualifying disclosure for the purposes of a whistleblowing complaint and taking into account the  specific rules in place which protect employees if they refuse to attend work where they believe the workplace poses serious and imminent danger.

The fact that an employer has complied with government guidance about making their workplace COVID-19-safe is not a defence to the above but can be useful if a claim is made.

Please get in touch for any HR and Employment matters with our specialist, Lucy Churchill or for Data Protection advice, Matthew Downing.

Stay safe and well.