Following Boris Johnson’s greatly anticipated speech about easing lockdown on Sunday 10 May 2020, there has been a deluge of new guidance for employers on returning to work.
The first was a lengthy document published on Monday 11 May 2020 entitled “Our Plan to Rebuild: The UK Government’s Covid-19 recovery strategy” which applies generally in England. This was followed on the evening of Monday 11 May 2020 with 8 different guides for employers and businesses on working safely during Covid-19. Each guide covers a different type of working environment. These 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. These guides can be found here.
We focus in this article on the guidance for employers, employees and the self-employed who work in offices and contact centres (the “Office guide”) which can be found here.
What is the status of the Office guide?
The Office guide has been drafted by the Department for Business, Energy and Industrial Strategy with input from firms, unions, industry bodies and in consultation with Public Health England and the Health and Safety Executive (“HSE”). It is designed to give some practical advice about how to provide a safe working environment. Although it is a useful guide for employers to follow (and they should comply with it), it is non-statutory guidance and does not supersede any legal obligations that employers already have relating to health and safety, employment or discrimination.
Who does it apply to?
All employers who operate fully or partially in offices or contact centres should read and comply with the Office guide. It applies to those businesses currently operating and those considering re-opening. Employers should not only apply this guidance to their employees, but should also think about how it applies to agency workers, contractors and other people that visit their premises.
What are the key messages in the Office guide?
One of the key messages from all of the current government guidance on return to work is that all employers should still make every reasonable effort to enable working from home as a first option. The Office guidance says that employers should provide equipment for people to work at home safely and effectively, for example, remote access to work systems. It also says that employers should keep in touch with off-site workers on their working arrangements, including their welfare, mental and physical health and personal security.
Where working from home is not possible, the Office guide says that employers must make every reasonable effort to comply with the social distancing guidelines (see below).
Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, employers should consider whether that activity needs to continue for the business to operate. If it does, the employer will need to take all the mitigating actions possible to reduce the risk of transmission between their staff (see below).
Do employers have to do a risk assessment prior to restarting office work?
Yes. All employers have a legal responsibility to protect workers and others from risk to their health and safety. Employers will need to carry out an appropriate Covid-19 risk assessment, in the same way as they do for other health and safety-related hazards. The Office guide says that this risk assessment must be done in consultation with unions or workers.
The Office guide refers employers to the interactive tools available on the HSE website to help with the risk assessment.
The risk assessment should cover clinically vulnerable employees (in particular pregnant employees) and those who are shielding. Employers should also take into account any duty to make reasonable adjustments for disabled workers.
Employers need to record the risk assessment in writing (unless they have fewer than 5 workers).
Employers also need to share the results of the risk assessment with their workforce. The Office guide states that, for employers with fewer than 50 workers, employers should consider publishing the results on their website, if possible. For employers with over 50 workers, the obligation is stronger as the Office guide says that they are expected to publish the results on their website.
Do employers need to consult with employees prior to returning to office work?
Yes. Employers have a legal duty to consult employees in good time on matters relating to their health and safety at work, in particular about the introduction of any measures at the workplace that may affect the health and safety of employees.
The Office guide and ACAS code on coronavirus both confirm that employers must consult with staff when planning to return to the workplace. The Office guide suggests the consultation should focus on how best to manage the risks of Covid-19. The Office guide says: “The people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely.”
If an employer has a recognised trade union, then the employer must consult with the health and safety representative selected by that union. If there is no recognised union, the Office guide says that employers must consult with a representative chosen by employees. If employers do not already have a health and safety representative in place, this is likely to require a process of nomination and, if necessary, election of a representative. Arguably, employers may also be able to consult directly with the employees themselves without having to go through a nomination or election process.
Who can return to the office?
Employers should seek to have only the minimum number of people on site to operate safely and effectively. This might include workers in roles that are critical for business and operational continuity, safe facility management or regulatory requirements (which cannot be performed remotely).
Is there any advice about vulnerable workers?
Yes. There are 2 categories of vulnerable workers for employers to consider. The first category is those who are “clinically vulnerable” and covers pregnant women and the over 70s as well as people with certain underlying conditions which may place them at higher risk. These clinically vulnerable people are asked to take extra care in observing social distancing and should be helped to work from home. Employers are expected to consider giving them an alternative role if they cannot do their current one from home. If they cannot work from home they should be offered the option of the safest available roles in the office, enabling them to stay 2 metres away from others. If clinically vulnerable people have to spend time within 2 metres of others, employers will need to carefully assess whether this involves an acceptable level of risk. There is no further guidance on assessing this risk.
In relation to pregnant workers, employers must ensure their risk assessment covers these individuals. They are entitled to suspension on full pay if suitable roles cannot be found.
The second category is those who are “clinically extremely vulnerable” and are shielding. These individuals will have been informed of this status by their GP or consultant and should have received a letter confirming their status. They have been strongly advised not to work outside the home and so should work from home. If they cannot work from home, they may be entitled to statutory sick pay, or company sick pay. At the moment individuals have been asked to shield until the end of June 2020 but the Government has indicated that this period is likely to be extended.
Employers also need to consider a third category of employee: those who live with someone who is shielding. It may be that those people cannot safely work in the office either.
In some cases, employees who are “clinically vulnerable” or “clinically extremely vulnerable” may be disabled under the Equality Act. In such cases, employers will also need to consider if there is an obligation to make reasonable adjustments and to bear in mind the risk of discrimination claims if they dismiss someone who is disabled or reduce their pay.
What about those employees with symptoms of coronavirus?
The existing government guidance continues to apply with regard to those with symptoms of coronavirus or those who live in the same household as someone with symptoms of coronavirus. They must stay at home for 7 or 14 days (depending whether they live alone or with others and if they have symptoms or not). Employers must try to ensure that these classes of employee do not physically come to work. They can work from home if they are fit to do so, or they may be entitled to statutory sick pay or company sick pay if not.
What about others with protected characteristics?
One of the objectives stated in the Office guide is to treat everyone in the workplace equally. The guidance suggests that employers should communicate with workers whose protected characteristics might either expose them to a different degree of risk, or might make any steps the employer is planning inappropriate or challenging for them. This could be considered as part of the risk assessment and as part of the consultation above.
Amongst other recommended steps, the Office guide suggests making reasonable adjustments to avoid disabled workers being put at a disadvantage, assessing the health and safety risks for new or expectant mothers and making sure that the steps to be taken do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.
How does an employer ensure social distancing in an office?
The Office guide sets out a variety of practical steps that employers can take to seek to maintain social distancing in an office. This guidance is split up into separate sections for coming to work and leaving work, moving around buildings and worksites, workplaces and workstations, meetings, common areas and accidents, security and other incidents. It is worth reading this parts of the Office guide before creating a return to work plan.
Some of the suggestions include:
- Staggering arrival and departure times to reduce crowding.
- Using markings and one-way flow at entry and exit points.
- Reducing maximum occupancy for lifts, providing hand sanitiser for the operation of lifts and encouraging use of stairs.
- Workstations should be assigned to an individual and not shared. If they need to be shared they should be shared by the smallest possible number of people.
- Using floor tape or paint to mark areas to help workers keep to a 2m distance
- Holding meetings outdoors or in well-ventilated rooms whenever possible
- Staggering break times to reduce pressure on break rooms or canteens.
What if social distancing is not possible for a particular activity?
Employers should consider whether that activity needs to continue for the business to operate, and, if so, take all the mitigating actions possible to reduce the risk of transmission between their staff. Further mitigating actions include:
- Increasing the frequency of hand washing and surface cleaning.
- Keeping the activity time involved as short as possible.
- Using screens or barriers to separate people from each other.
- Using back-to-back or side-to-side working (rather than face-to-face) whenever possible.
- Reducing the number of people each person has contact with by using ‘fixed teams or partnering’ (so each person works with only a few others).
If people must work face-to-face for a sustained period with more than a small group of fixed partners, then employers will need to assess whether the activity can safely go ahead. The Office guide notes that “No one is obliged to work in an unsafe work environment.”
How do employers deal with customers, visitors and contractors?
One of the objectives of the Office guide is to minimise the number of unnecessary visits to offices. Visits via remote connection are therefore encouraged as is reconsidering schedules for essential services, so that any overlap of people is reduced, perhaps carrying out services at night.
Should PPE or face coverings be worn in the office?
The Office guide confirms that coronavirus needs to be managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE. Unless employers are in a situation where the risk of COVID-19 is very high, their risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited.
The Office guide also confirms that the evidence of the benefit of using a face covering to protect others is weak and the effect is likely to be small, therefore face coverings are not a replacement for the other ways of managing risk. If employees do wish to use face coverings, employers should make sure that they advise them how to use them properly. For example, employees should wash their hands for 20 seconds before putting one on or removing it.
What communications/ training should employers be carrying out?
One of the objectives of the Office guide is to ensure that all workers understand the coronavirus related safety procedures before returning to work and to make sure all workers are kept up to date with how safety measures are being implemented or updated. Employers should engage with employees and their representatives through existing communication routes to explain and agree any changes in working arrangements. This should be an ongoing arrangement to monitor and understand any unforeseen impacts of changes to working environments.
What other things do employers have to think about?
The Office guide has sections on cleaning, hygiene (handwashing, sanitation facilities and toilets), work travel, deliveries to other sites/branches and inbound and outbound goods.
Are the HSE going to carry out checks?
Yes. The Government has indicated that the HSE will carry out spot checks. Where the HSE (or a local authority) identifies employers who are not taking action to comply with the relevant public health legislation and guidance to control public health risks, they will consider taking a range of actions to improve control of workplace risks. The actions the HSE can take range from the provision of specific advice to employers through to issuing enforcement notices to help secure improvements.
Employers should also be aware that there is a risk that employees may report employers to the HSE if they feel that the employer is not complying with the guidance. Employees may then be protected by the whistleblowing legislation and employers will need to take care not to subject these employees to any detriment as a result of the employee raising concerns with the employer or the HSE.
Kerry Garcia
Frances Rollin