Employers have a duty to ensure, so far as reasonably practicable, the health, safety and welfare of their employees at work. The route back to work during this current health crisis is likely to be different for everyone. The differing approaches from the UK and Scottish Governments on the timescales for easing the lockdown means employers need to carefully consider if they can re-commence work and if so, the health and safety considerations to take into account when doing so.
From 13 May 2020, the UK Prime Minister has actively encouraged those in England who cannot work from home to return to work. This has led to questions about how to ensure the health and safety of workers whilst complying with the latest announcement. The UK Government has produced eight helpful guides that are industry-specific, to assist employers, employees and the self-employed understand how to work safely during the coronavirus pandemic.
The guides cover different types of work from construction, manufacturing, outdoor work, factories, labs and offices, to restaurants and shops. These guides have been prepared in consultation with industry. Those working in each sector would be well advised to familiarise themselves with the guides which are relevant to them, which can be found here. The HSE has stated that those who flout the rules risk being criminally prosecuted.
Whilst the guides are industry-specific there are common themes that employers should consider when determining how their business can operate safely during COVID-19. These are considered below. However, the clear message remains that people who can work from home should continue to do so. There are also certain businesses such as pubs, cinemas, hotels, gyms, non-essential retail stores and hairdressers that must still remain closed.
Risk assessments
Employers have a duty to carry out risk assessments to assess and manage risks to their employees arising from work activities. They should carry out a risk assessment/s for COVID-19 before employees return to work. This includes assessing and managing the risks of COVID-19. And whilst it is recognised that an employer cannot completely eliminate the risk of COVID-19. , they are to reduce the workplace risk to the lowest reasonably practicable level by taking preventative measures. Where possible work practices should be considered to find remote alternatives.
Social distancing
Social distancing (maintaining a two-metre distance) must be in place wherever possible. Workplaces like offices and shops are encouraged to place markings on the floor and one-way systems to assist with this. If a business cannot comply with social distancing it needs to consider whether the activity is vital to its operation and if so, it should take steps to mitigate the risks of that activity. Such steps could include erecting screens or having people work side to side, or back to back, rather than face to face.
Work patterns
Employers should consider whether it is possible to stagger arrival and departure times, including varying shift times and keeping teams small and contained. Having the same personnel on shift will reduce the number of people each person has contact with.
Cleaning and work equipment
Employers should consider the ability to reduce the number of people working with and touching equipment, such as issuing single tasks to those working on construction sites or avoiding the use of hot desks in offices. Work equipment should be sanitized and increased cleaning and handwashing facilities should be made available.
Communication
Employers should have clear communication and engagement with their workforce, providing information about any changes in their working arrangements, and any COVID-19 related safety procedures.
How does this apply to Scotland?
The Scottish Government's message remains to "Stay at Home" and as such, specific Scottish guidance on this has not yet been issued, given only essential services are currently operating. The UK guidance is clear that it should be considered alongside local public health and safety requirements and legislation in those devolved administrations. In Scotland, businesses continuing to operate need to ensure they are taking all reasonable steps to implement social distancing, i.e. maintaining a two-metre distance.
It is anticipated that the Scottish Government will issue guidance when the Scottish workforce begins to mobilise back to work, with construction, manufacturing and retail a priority. Whether the guidance will be the same as the UK Government guidance remains to be seen, however, the UK guides state there has been input from the devolved administrations and so it seems unlikely there will be significant differences in the content of the advice.
Until such time as guidance is issued, where a business, in compliance with Scottish rules, is still operating during the COVID-19 restrictions, it would be well advised to take the UK Government guidance into account, as it is likely to be considered best practice.
Contributor
Legal Director
