The coronavirus pandemic has caused significant disruption across all industries - but has also seen an astonishing amount of innovation as businesses adapt to continue to provide services; or, to offer brand new ones. As we move further away from the old "normal", what should businesses be thinking about in terms of their obligations under health & safety law?
Health & Safety Obligations
Recently there have been a number of examples of companies setting aside the "day job" to respond to coronavirus: from distilleries switching to produce hand sanitiser; to the Royal Mint and 3D printer owners producing PPE. Large numbers of workers have begun working from home, while others are adjusting to new workplace practices.
While much has changed in the past few weeks, businesses should be aware that health and safety law has not. There has been no relaxation in the obligations on employers to ensure, as far as reasonably practicable, the health, safety and welfare of employees, customers or the public, set out in the Health and Safety at Work etc Act 1974.
In times of change, it is natural for businesses to want to respond quickly. However, it is also important to assess any new risks arising from new work practices - and, to take steps to protect employees appropriately.
Firstly, it is important to check the business's insurance policy, and confirm it does include cover for the proposed new way of working: are there any restrictions or exclusions? Does it include delivery vehicles, new employees, or new equipment? Is this an alternative way of doing something you already do, or is it a brand new area of work?
It is essential to comply with the obligations in the business's insurance, to avoid the risk of voiding the policy or losing indemnity. It is also a legal requirement to have at least a minimum level of employers' liability insurance. If in doubt, businesses should speak to their insurer or broker, to confirm their agreement with what the business is proposing to do.
Secondly, businesses must think about whether new processes are changing risks to workers, and if so, how to mitigate those risks.
Under the Management of Health & Safety at Work Regulations 1999, all employers have a duty to carry out a "suitable and sufficient" assessment of risks to employees and others affected by the business's undertaking. My colleagues Victoria Anderson and Elaine McIlroy recently provided an update on health and safety for workplaces which remain open.Aside from the risks of COVID-19 itself, businesses should also review their risk assessments for other issues arising from new working arrangements. For example, do you have enough staff to work safely? Is new PPE compatible with existing equipment? Employers must ensure they are reviewing risks regularly as systems develop, and keep a written record of the risks and the steps taken to protect employees.
One further consideration is whether staff are sufficiently trained. This may apply to new or inexperienced staff who are unfamiliar with processes; or, employees asked to use new equipment or take on different tasks for business continuity. There is also a specific duty under the Personal Protective Equipment at Work Regulations 1992 to ensure staff provided with PPE are appropriately trained in how to use it.
Ultimately, the current pandemic is leading to both interruption and innovation, as businesses respond to the changing situation we find ourselves in. It is important that in thinking outside the box, employers do not lose the protection of insurance policies - and, that they remember their obligations to ensure the safety of their employees and others.