Coronavirus – What steps must employers take?
Solicitor James Winterbottom takes a look at how the national pandemic fits into workplace health and safety framework.
Nobody can fault employers for not knowing what to do for best at present; every organisation has its own bespoke challenges and needs, and the national situation evolves daily, without much predictability.
Examples of the type of challenges being faced at present include:
– Organisations that have to continue full function, such as supermarkets, hospitals, service stations, banks and many more;
– Organisations that are having to adapt working practices to observe national distancing requirements, such as working from home; and
– Organisations that simply cannot survive by having all (or even anything more than a minority of) employees furloughed (remember, they cannot undertake any work whilst furloughed), and/or cannot function entirely remotely.
It is important to remember that even national emergencies such as this do not automatically suspend compliance with workplace health and safety laws. Yes, courts would clearly take the present circumstances into account, but this is certainly not to say that “anything goes” for the time being.
My view is that there will be a spectrum of possibilities: on the one hand an employer who orders all staff to continue to come into work and makes no provision whatsoever for protective measures is likely to fall foul of the law, but on the other hand I struggle to see a court finding against a medical treatment provider if say most PPE was available but perhaps there was a temporary shortage of perhaps a visor for example.
I heard a piece on the radio the other day regarding passport office staff being unhappy about being compelled to return to work in the office. A couple of days later I observed staff at the checkout at a local supermarket working without any PPE or any protective screen etc. What employers must do in this period is likely a key issue at present and below I set out some key points for consideration:
1. The first thing to do is check the Government’s website for the list of businesses that must remain closed (and also the exceptions); if it is not permitted to be open then the employer is acting illegally if they do in fact open;
2. Any employee on the Government’s shielding list (i.e. designated as being particularly vulnerable to the disease) can legitimately remain at home throughout the shielding period and my view is that dismissal or prejudicial treatment as a consequence would open up the employer to a high risk of an employment law claim such as unfair dismissal and/or disability discrimination;
3. The employer must undertake a risk assessment and in doing so consult with employees both in the undertaking of the risk assessment and also in explanation of the findings and protective measures introduced to avoid injury at work that emanate from that risk assessment;
4. Employers must remember that personal protective equipment, or “PPE” is NOT the starting point or “go to” solution. The starting point is to consider the system of work as a whole and ONLY if the work cannot be reasonably done without person-to-person contact then the employer can turn to considering PPE. This point was exemplified in the case of Morgan v Lucas Aerospace Ltd (1997). In that case the system of work was dangerous but the employer argued that the gloves they had provided to the employee were the best available. The Court held that if the glove was the best available then the employer had to devise a new system of work which avoided the risk of workplace injury. This is the key point: the emphasis is on the system of work and if that system is unsafe even with the best PPE available then a new system will need to be developed. To return to my real life examples above: has the employer done everything possible to enable the passport office staff to be able to avoid contact, and why wasn’t the till operator at the supermarket shielded behind a glass screen?
5. Assuming no safer system of work can be devised, and that the employer must keep open, with employees in the workplace interacting person-to-person, then, yes, the employer can then turn to PPE. In addition to a general workplace risk assessment, when it comes to PPE the employer must undertake a separate risk assessment on PPE considerations to determine whether the PPE is suitable and sufficient to manage the exposed risk. Therefore, employers cannot simply provide any old masks or gloves (which without adequate replacement and/or cleaning may in fact increase the hazard) and then rest assured; they must consider carefully what it is that is being provided, whether it sufficiently deals with the risk and if not whether further PPE needs to be sourced and then the maintenance and use of that PPE.
6. Above all employers must actively monitor the situation. If staff begin to fall ill then the employer should undertake a serious evaluation as to whether the protective measures in place are adequate and whether indeed remaining open with person-to-person contact is advisable. Unsafe work practices cannot persist simply because no safer method can be thought of, except in limited situations such as emergency health care.
7. Technically, employers would still be under a duty to ensure employees are working safely from an ergonomic perspective but my personal view is that it would be entirely impractical to send people to employees’ homes to ensure all of their display screen equipment is set to the correct height etc. My advice here would be that the employer should provide quality guides to the employees to enable them to set themselves up at home adequately and then perhaps require both emailed confirmation they have read and understood and to also actively monitor any issues.
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