Legal News | 1.09.20

Safe systems in the workplace as lockdown measures ease

As the government continues to ‘unlock’ from the coronavirus-imposed lockdown, many businesses are asking their staff to return to their usual places of work. Businesses owe a duty of care to individuals in the workplace, as a result of the Health and Safety at Work etc. Act 1974, as well as duties to the wider public who may be impacted by their work. This note is intended to provide a brief reminder of (a) the employer’s duty to maintain a safe system of work, (b) ensure that the risks of a coronavirus outbreak are mitigated so far as possible; and (c) what to do to avoid a claim from arising.

Maintaining a safe system of work and mitigating the risk of an outbreak

Some measures that we would highly recommend employers consider include:

• Maintaining and updating the workplace risk assessments to manage the risk of an outbreak. This ought to consider whether the existing working conditions increase the risk of an outbreak, and what can be done to alter those conditions where possible, or mitigate the risk if not.
• In light of the risk assessment, employers should consider putting in place measures that ensure social distancing for those employees working in close proximity. Such measures could include moving desks apart, erecting screens around workstations, and signposting one-way systems in narrow corridors.
• In mitigating the risk of an outbreak for those on site, particularly where social distancing is harder to ensure, employers could ask employees to wear masks, and ensure that a sufficient supply of hand sanitiser and hand-washing facilities are available.
• Employers could also consider staggering shift patterns for those who must work on site, to reduce numbers and avoid unnecessary contact. For employees working from home, businesses should ensure that they have the equipment needed, and regular contact is maintained to discuss wellbeing.
• Signs could be posted around the workplace to encourage social distancing, handwashing, and the reporting of coronavirus symptoms to Human Resources.
• Employers should ensure that the workplace is regularly cleaned (preferably professionally), and encourage employees to clean up after themselves (e.g. using anti-bacterial wipes in communal areas, with instructions to wipe down any surfaces touched).
• Employers should also consider what to do with those employees that were shielding (and any additional support they might need in returning to work), and what action must be taken to limit the consequences of an outbreak.

Action to avoid a claim

If a claim is made by somebody who has contracted coronavirus in the workplace, the Court will consider whether the business should be held liable for that contraction (and therefore the loss that the individual has suffered as a result). The Court will likely take into account how well the business has implemented the government’s guidance (and the measures discussed above) to mitigate the risk of an outbreak.

The measures put in place to mitigate the risk of an outbreak must be communicated to those on site, for example through video chat meetings, emails, letters, leaflets and signs in the workplace. To communicate these measures (and any updated government guidance), managers should be given any additional training where necessary, and the communication with staff should be regular and internally consistent.

As part of the risk assessments, a clear record should be kept of the measures implemented and what has been communicated to those on site. Ideally, businesses should ask those on site to confirm in writing that they have discussed the additional measures with their managers, and understood them.

If coronavirus is contracted in the workplace, it is important for businesses to check their insurance policies, to ensure that they are covered, particularly for legal fees. If the policy does not provide coverage in the event of a claim, then it might be worth discussing the matter with an insurance broker, who will be best placed to advise on the merits of switching insurance providers.

If you would like more specific advice on your obligations to maintain a safe system of work, or perhaps how you could implement some of the measures suggested in this note, please get in touch with your usual contact or email: emma.jewell@wansbroughs.com.