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Health & Safety at Work and Covid-19: adjusting the to the normal?
Introduction
Coronavirus, and the national and global response to it, has brought about rapid and radical changes in the way that people work.
The government's guidance is that people should only go to work if they cannot work from home.[1] In addition, many businesses and venues are closed for the foreseeable future.[2]
As a result, many more people are working from home than ever before.
Others simply do not have this option.
How does this new and rapidly changing situation interact with the duties on employers to ensure the health and safety of their employees?
This is a complex question that will play out over months, if not years. This article offers some thoughts on the legal issues that may arise around health and safety in the workplace in the context of coronavirus.
Employers' duty of care
Employers owe their employees a common law duty of care to provide a safe place and system of work, safe equipment and safe staff. In addition, they have specific statutory duties under the 'six pack' of health and safety regulations implementing the EU health and safety regime in the UK.[3] Central to this regulatory regime is the obligation on employers under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 to carry out risk assessments.
Following the change in the law under s69 of the Enterprise and Regulatory Reform Act 2013, employees can no longer bring a civil claim for damages on the basis of a breach of health and safety regulations alone. They must show that the employer has been negligent.
Nonetheless, health and safety regulations and associated guidance remain relevant to identifying the scope and standard of the duty of care owed by an employer, and breach of health and safety regulations may be strong evidence of negligence. The content of health and safety regulations, and guidance issued in relation to them, therefore remains pertinent.
Covid-19 and Health & Safety at Work
The Health and Safety Executive (HSE) has published guidance on its website in relation to coronavirus[4], but as yet it is relatively limited and only covers certain discrete areas.
HSE also has existing, detailed guidance for employers in relation to an outbreak of pandemic flu (i.e. a new influenza virus), linked to the government's national framework for responding to an influenza pandemic.[5] This guidance remains informative in relation to COVID-19.
Shortages of Personal Protective Equipment (PPE) for NHS, care home and other health workers have already received extensive coverage in the press, and there are obvious implications for employers and employees who come into contact with infectious micro-organisms as a result of the kind of work they do, for example if they work with people who may be infectious (e.g. in a hospital), handle waste material that may be contaminated (e.g. refuse disposal) or work in an environment which could be contaminated (e.g. sewer maintenance). In these situations, employers have duties under the Control of Substances Hazardous to Health Regulations 2002 (COSHH). The Advisory Committee on Dangerous Pathogens also published (in 2003) "Infection at work: Controlling the risks", a guide for employers and the self-employed on identifying, assessing and controlling risks of infection in the workplace.[6]
All employers also have a duty ensure that there is good hygiene in the workplace and that working practices do not pose undue risks to employees. An employee who could show that their employer had breached these duties in relation to COVID-19 might have a basis for claiming damages, although they might encounter difficulties in relation to causation and loss suffered.
Employers are not liable, however, for the general risk of contracting COVID-19, which is just as likely outside the workplace as in it.
Indirect impacts of Covid-19
The COVID-19 pandemic also has a number of more indirect, but equally significant, implications for health and safety in the workplace, some of which are highlighted in the HSE guidance on COVID-19 and on pandemic flu, which notes that:
"Where there are indirect health and safety effects, it is again important to use the principles of risk assessment as a basis for ensuring the appropriate controls are put in place."
Specific points to consider include the following:
- A pandemic may deplete an employer's workforce. Employers therefore need to ensure appropriate training is provided to remaining workers who may be required to carry out unfamiliar tasks, and will need to review relevant risk assessments.
- Employers will need to think about extra precautions if workers, who are normally required to work in a group, are required to work alone or in a remote location. This might require that particular kinds of activity are suspended until the employer has a sufficient complement of staff. It will certainly require that the risks involved should be reassessed and appropriate control measures put in place.
- Social distancing measures may also lead to changes in the way that tasks are carried out. This may require risks to be reassessed or new control measures to be put in place.
As employers and employees adjust to a "new normal" – for at least the next few months – it will be important for them to consider these semi-permanent changes to working practices, such as those above, which must be accommodated in risk assessments and control measures in order to discharge their duty of care.
Working from Home and Mental Health
While the risks posed to those still 'going out' to work are perhaps the most obvious, there is a further set of issues for employers to consider generated by the vastly increased numbers of employees now working from home.
Indeed, the HSE COVID-19 guidance specifically notes that employers have the same health and safety responsibilities for home workers as for any other workers.
Employers must consider how to keep in touch with employees, what activities they will be carrying out at home, and for how long, whether they can be done safely, and whether control measures need to be put in place to protect them.
One important aspect of this is the risks associated with using display screen equipment (DSE) at home on a long-term basis. The HSE COVID-19 guidance notes that employers may need to carry out home work station assessment for employees, and provide specialised DSE equipment where necessary.
Another interesting aspect of the HSE COVID-19 guidance is the heavy emphasis it places in on the mental health of employees working from home. It notes that "If contact is poor, workers may feel disconnected, isolated or abandoned. This can affect stress levels and mental health" and that "Being away from managers and colleagues could make it difficult to get proper support". It recommends putting "procedures in place so you can keep in direct contact with home workers so you can recognise signs of stress as early as possible."
While employees can only bring civil liability claims on the basis of having suffered a recognised psychiatric injury, employers will need to be very mindful of the increased risks to mental health posed by new working practices as a result of COVID-19 when considering how to discharge their health and safety duties.
[1] https://www.gov.uk/coronavirus
[2] The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020. See also: https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance
[3] The regulations are: The Management of Health and Safety at Work Regulations 1999; The Provision and Use of Work Equipment Regulations 1998; The Manual Handling Operations Regulations 1992; The Workplace (Health, Safety and Welfare) Regulations 1992; Personal Protective Equipment at Work Regulations 1992; Health and Safety (Display Screen Equipment) Regulations 1992.
[4] https://www.hse.gov.uk/news/coronavirus.htm
[5] https://www.hse.gov.uk/biosafety/diseases/pandflu.htm#ref1
