An impending shortage of seasonal workers to harvest crops is expected to hit the UK hard, and particularly so in Scotland. Here, we have only 8% of the UK's population but need 15% of the annual seasonal workforce– yet the shortfall for Scotland is estimated at between 10,500 and 13,500.

There have been initiatives to bring experienced workers from Eastern Europe to the UK to plug this gap. A Cambridgeshire group has already brought in two flights with 300 Romanian workers to its farms, and four other flights have been reportedly chartered in similar circumstances.

However, it is clear from the numbers that such an initiative is unlikely to provide the sector with the experienced workers it desperately needs.

Furthermore, there are reports that Ukrainian workers, keen to come to the UK for agricultural work, are being actively discouraged by their own Government.

Alternative schemes have sprung up, with Concordia, a charity that organises volunteer workforces, running a scheme to recruit and place workers. However, only a reported 30% of applicants have had any previous experience in farm work.

Accordingly, even if the practical challenges of recruiting sufficient workers are overcome, what happens when those workers arrive?

It seems that the majority of those recruited will be people who have no experience at all of working in the agricultural sector. Add to that the fact that we are in extraordinary times, with additional health and requirements placed on employers at the same time as the crisis is impacting on the ability to maintain established practices.

What should agricultural employers be doing, and can they expect leniency from the HSE to reflect the current context?

The HSE approach

The HSE has confirmed that it continues in its regulatory role and has emphasised that the duty to comply with health and safety legislation remains with employers and businesses.

Although the HSE has been flexible in some areas, notably in relation to the washing and re-use of single use PPE in the health care sector; there is no indication that there is a general relaxation of requirements in relation to health and safety.

Accordingly, all businesses and employers should continue to meet health and safety obligations as normal.

They must also meet the additional requirements imposed to manage specific risks of COVID-19. This will be a challenge for any employer but even more so for one with new and inexperienced workers.

Challenges posed by an inexperienced workforce

The Health & Safety at Work Act 1974 imposes an overarching duty on employers to ensure, so far as is reasonably practicable, the health and safety of employees, other workers and members of the public who may be affected by the employer's operations.

There are regulations that set out the requirements for particular kinds of work in more detail. However, there is a general duty to assess work activities; to identify the risks created by that work, and the means by which that risk can be removed or reduced to the lowest level reasonably practicable.

An essential component of implementing health and safety measures is ensuring that workers understand the risks, the control measures for those and the required steps that guard against the risk of harm. This will be particularly challenging with a new workforce.

The most obvious and effective way to achieve it is with good training; that may be difficult in a sector where the work is time sensitive and there are practical difficulties with recruitment.

However, appropriate training before work commences should not only reduce the risk of harm but also improve efficiency too.

Once work starts, workers should be supervised to ensure compliance with any safety control measures. Where workers are inexperienced, a higher level of supervision is probably required initially.

A shortage of experienced workers will of course pose difficulties in recruiting and maintaining sufficiently qualified supervisors, and the ability to provide adequate supervision should be considered when assessing the feasibility of carrying out work safely.

Junior supervisory roles could be given to available experienced staff, and allocating those individuals to various work teams could also assist.

Depending on the dangers posed by any particular work, or the level of skill required to carry it out safely; it may be necessary to assess new and inexperienced employees to ensure they are capable of carrying out the work safely.

Those with no experience of the sector may need assessment following training to ensure that the message has been received and understood.

Again, although this might seem time consuming where time is short; it could prove an efficient way to ensure that training has been adequate and to identify any issues before something goes wrong.

Particular measures required as a result of COVID-19

Employers have to ensure that social distancing can be observed at work where possible. Seasonal farm work often involves the provision of living accommodation for workers. Although an employer's health & safety obligations do not extend to living quarters, which are not considered to be the workplace, we are in novel circumstances.

It is possible that employers will have to ensure that any accommodation provided is compliant.

Indeed, in Germany, which has recruited 80,000 workers from Eastern Europe, it has been reported that sleeping accommodation used by such workers can only be occupied at 50% capacity to allow for social distancing.

This requirement for more space will also be relevant in washing, eating and cooking areas where more facilities may be needed per person than normal. In addition, all of those facilities are likely to need enhanced cleaning regimes in communal areas.

At present cleaning in living accommodation might be left to the workers to arrange. However, consideration should be given to whether the employer should now assume that responsibility.

At work, sanitary and welfare facilities will probably need to be augmented to allow for more frequent handwashing, while social distancing. Again, cleaning those facilities may need to be introduced or enhanced.

The organisation of the work itself will need to be reconsidered to allow social distancing where possible. This may result in lower efficiency, but, unless the benefit achieved by the measures is grossly disproportionate to the cost, they are likely to be necessary.

A clear system will need to be in place for reporting and managing COVID-19 symptoms and isolating any workers who are displaying these. For those living onsite, this may pose particular problems, so clear arrangements should be made in advance for this possibility.

Finally, with the Scottish Government's announcement on 28 April that face coverings can be beneficial for scenarios where social distancing is difficult; consider whether workers should be required to wear masks or similar coverings for certain tasks.

Planning is critical

Although there is no doubt that the shortage of suitably qualified seasonal farm workers poses a challenge for the agricultural industry this year, that difficulty does not restrict its health and safety obligations.

Employers face a two-pronged challenge from inexperienced workers and the special measures needed to combat the risk of COVID-19, but good planning now may help to lessen the impact.


Kate Donachie

Legal Director