Although the Government’s furlough scheme has been extended until October 2020, with no changes to the scheme forecast before August 2020, many employers are now faced with the task of getting employees back to work, where possible. Equally those employers who have continued to operate a workplace need to ensure that they are compliant with the most up to date guidance.
Most employers will have carried out risk assessments (formally or informally) during the course of dealing with COVID-19 in recent months. However those should now be repeated (or, erm done for the first time if you’ve not quite got round to doing a formal one just yet) following the Government’s guidance.
The comments below are based on the guidance dated 11 May 2020 – but employers should bear in mind that the situation continues to evolve and so this, like every other piece of government guidance recently, may well be subject to change.
Core principles to keep in mind
- Workers should not be required to work in an unsafe workplace. COVID-19 has changed the previously understood definitions of workplace safety, creating a “new normal”. It is vital for employers that they follow the guidance as issued (and amended) from time to time if they are to meet this obligation.
- Employers must comply with their normal duties of health & safety and the new duties arising as a result of COVID-19 and the government guidance.
- Employers must also take care to ensure that they continue to comply with the provisions of the Equality Act 2010, considering both the risk of direct and indirect discrimination, particularly in light of the definitions of clinically vulnerable and extremely clinically vulnerable individuals. For example, however well meaning, employees who are older or may be disabled within the meaning of the legislation must not be treated less favourably, which may well be a tricky balancing act for employers. Employers will need to be able to demonstrate that any treatment which could place persons with a protected characteristic (such as older workers or those with a disability) at a disadvantage is proportionate and can be objectively justified.
First things first
Carry out and document a COVID-19 Risk Assessment (or update the one you have already done). Only employers with less than 5 workers are exempt from the obligation to document their risk assessment – they must still complete one.
The government guidance contains a checklist of the points to consider when working through the COVID-19 risk assessment (which will therefore make excellent headings for a written risk assessment report).
The guidance published by the government is detailed and bespoke to industry sectors.
- Construction and other outdoor work
- Factories, plants and warehouses
- Labs and research facilities
- Offices and contact centres
- Other people’s homes
- Restaurants offering takeaway or delivery
- Shops and branches
- Vehicles (including couriers, mobile workers, drivers, etc etc)
Many of the issues to be considered are similar and fall under similar topic headings, but there are key differences. The devil, as they say, is in the detail!
In completing your risk assessment ensure you comply with your duty as an employer to consult with workers about health & safety. Consultation should take place with your trade union’s health & safety representative if there is one. If you do not recognise a trade union then you need to appoint a health & safety representative (if you don’t already have one) and consult with them about health & safety. Bear in mind that employers cannot chose who this representative will be – it is a matter for the workforce, so if you don’t have a representative you may need to run appropriate elections to appoint one.
Your health & safety representative should have input into the format and substance of your risk assessment and be properly consulted about the risks to be assessed, how they will be assessed and how identified risk will be eliminated or mitigated.
Employers must also work with other people who may have access to the workplace to ensure that overall workplace risk is limited. This will include contractors (cleaners, security guards etc) and building management etc – along with other employers where there are shared spaces, such as corridors, kitchens, toilets, other facilities and lifts etc.
What does the guidance require?
- Increase the frequency of hand-washing and surface cleaning. If you haven’t done so before it is recommended to document how often surfaces are cleaned.
- Make every reasonable effort to enable working from home as a first option. This is not about whether employees want to work from home, or indeed whether or not employers want them to. The government guidance is quite clear that if people can work from home they should be. Full stop. Requiring (or encouraging, perhaps even not discouraging) people to attend the workplace where this is not necessary or where they could work from home will be a breach of the government guidance and your duties as an employer to protect the health & safety of your workforce.
- Where working from home is not possible comply with the social distancing requirement to keep people 2m apart wherever possible. This may mean reconfiguring the working environment (the guidance recommends limiting the time people spend together, using screens or barriers to separate people, have people working back to back (or side to side) rather than face to face where possible and reducing the number of points of contact that workers have. Many businesses are considering shift or team working to ensure that the number of people physically present in a workplace at any one time is limited, and within those shifts the points of contact are still more limited.
- Where you cannot keep people 2m apart consider whether the activity is business critical, and if so take all steps possible to reduce transmission risk between staff. Bearing in mind at all times that employees cannot be required to work in an unsafe environment – which may include an environment which they perceive as unsafe if that has a detrimental impact on their mental health.
Having a) undertaken your COVID-19 Risk Assessment and b) consulted with your workplace Health & Safety representative about the assessment, health & safety generally, and the above guidance employers should share the risk assessment results with the workforce.
Employers with over 50 workers should also publish the results on their website.
- Risk Assessment.
- Consult with workers about health & safety.
- Share Risk Assessment results with your workforce.
- Publish Risk Assessment on website ( if you have 50 plus workers).
- Display the governments notice (page 6 of guidance) in your workplace.
If you want to discuss the extension of the furlough scheme, or any of the government’s guidance on getting people back to work please do speak with your usual Magrath Sheldrick LLP contact or email [email protected] and one of the team will get back to you (within a couple of hours normally – unless you email in the middle of the night, in which case you will probably have to wait until morning!)
The contents of this briefing are for information purposes only. All circumstances are unique and the information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.