Employers - one of the biggest health and safety risks of Covid-19 is making you neglect other health and safety risks.
The coronavirus outbreak presents unprecedented challenges for employers, particularly as regards ensuring health, safety and welfare. The Government has introduced Regulations – the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 – which, (amongst other things) have forced some businesses to close altogether and others to restrict their activities throughout the ‘emergency period’. They also restrict the purposes for which people can leave where they live and place limitations on people gathering in public.
Under the Regulations the police, community support officers and certain local authority officials are given enforcement powers. Anyone contravening the Regulations may be given a warning, a fixed penalty notice or may be liable to prosecution. Companies and other organisations can be prosecuted for failing to comply with the Regulations, as can any of their directors and senior managers who may have caused or contributed to the non-compliance.
Businesses allowed to stay open, fully or partly, during the emergency period may do so only if they have put in place adequate control measures. These are intended to limit the spread and minimise the risks of coronavirus infection, and they are set out in detail in the Government’s official guidance.
In summary, the control measures are (1) home working - all employees must work from home unless it is impossible for them to do so; (2) self-isolation - the obligation is on individuals to self-isolate, if they become symptomatic or live in a household where someone else develops coronavirus symptoms (a new continuous cough and/or high temperature), but employers must know the requirements and ensure that staff adhere to them: (3) social distancing – if not all employees can work from home, employers must take precautions to prevent persons at work being too close (i.e. not less than 2 metres apart); (4) cleanliness - staff must be instructed in cleanliness and hygiene and employers must provide sufficient and adequate washing and cleaning facilities; (5) sickness procedures - employers must have sickness procedures to prevent infected or potentially infected persons coming to work and to send home anyone at work who develops coronavirus symptoms; and (6) information - staff must be given sufficient information to enable them to understand the risks and the precautions so that they do not unintentionally by-pass the procedures or undermine the effectiveness of the risk controls.
Nothing in the Regulations or Guidance changes health and safety law. The Health and Safety at Work etc. Act 1974 and all health and safety regulations still apply in full. Ensuring the health and safety of employees and ensuring that persons who aren’t employees are not exposed to risk are still overarching duties. Work-related coronavirus infection is also one of those risks - meaning that it must be covered by risk assessment and implementing control measures – but it is not the only one and must not be treated as if it is.
All duty holders must continue to comply with all their other health and safety duties and must not assume that they are less important against the background of the coronavirus outbreak. It no longer matters or is less important now that coronavirus is around. Failure to comply with those other duties could still lead to enforcement action and, in some cases, prosecution and that the business was preoccupied with coronavirus is no defence.
Employers may encounter a genuine problem where coronavirus itself, or the controls needed to prevent infection, clash with other duties. Examples include the need for an essential machine-repair but the repairers can’t do the work without contravening the coronavirus precautions the employer has in place. Or where lifting equipment is due for statutory thorough examination but, coronavirus having depleted their numbers, inspectors are unavailable to carry out the work in time. It could be a case of coronavirus absence amongst the employer’s own staff reducing the number of available supervisory staff.
Employers must not use their coronavirus precautions as an excuse or an impediment to other health and safety compliance. If they do, directors and senior management may be accountable for the non-compliance. Employers must co-operate with contractors to devise ways of working so that all the risks, coronavirus infection included, can be managed. Work must be planned and organised so one group of risk controls does not undermine another group.
If, it does happen that coronavirus-related matters result in an employer genuinely being unable to comply with other health and safety duties, the employer – and for a corporate body that means directors and/or senior management - must decide whether the work or operation that will adversely affect compliance is essential. That decision must be a health and safety risk-based decision – nothing else.
Unless it is crucial that the relevant work or operation takes place, it should be cancelled or postponed. If it is crucial for it to go ahead the risks must still be managed and, so far as reasonably practicable, reduced to the lowest level.
Nothing in the Regulations or Guidance applicable to coronavirus (Covid-19) changes any other aspect of health and safety law.
Coronavirus and the risks it gives rise to cannot be used to excuse compliance with all other duties and responsibilities under health and safety law.
In almost every case, comparatively simple planning of work and operations will enable coronavirus risk precautions and other health and safety risk controls to function properly together.
If you require any further information or advice please do not hesitate to contact Alan Millband at [javascript protected email address] or on 07920 799703 or Robert Starr at robert.starr@howespercival.com or on 07971 361765.
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