Health & Safety update - How do companies remain "COVID secure" in a crisis?

Last updated: 12:00, 26 May 2021

Notwithstanding the unease that many of us are feeling about the continued spread of the “Indian variant” of COVID-19, the 17 May 2021 saw the Government resist calls to delay its plans and instead move to step 3 of its roadmap out of lockdown. As such, most businesses in all but the highest risk sectors are now permitted to reopen. This includes indoor hospitality where, as in Step 2, venues do not have to serve a substantial meal with alcoholic drinks. Customers do, however, have to order, eat and drink while seated. Other indoor locations to re-open include indoor entertainment venues such as cinemas and children's play areas; the rest of the accommodation sector, including hotels, hostels and B&Bs; and indoor adult group sports and exercise classes. The Government have also allowed some larger performances and sporting events in indoor venues with a capacity of 1,000 people or half-full (whichever is a lower number), and in outdoor venues with a capacity of 4,000 people or half-full (whichever is a lower number). In the largest outdoor seated venues, where crowds can be spread out, up to 10,000 people are able to attend (or a quarter-full, whichever is lower).Although the Governments advice is for everyone to continue to “work from home where possible”, it is no longer advising workers not to attend the workplace in circumstances where working from home is not possible. Not surprisingly, employers who are permitted to re-open their businesses must still ensure that their workplace “COVID-secure”. This does, of course, mean following the latest workplace guidance which has been issued by the Government and prepared in conjunction with other bodies such as Public Health England (PHE) and the Health and Safety Executive (HSE). Although strictly guidance only, it is widely recognised that the HSE are using this as a benchmark for determining whether employers are meeting their responsibilities under health and safety legislation.

How can companies create a 'COVID-secure' workplace? 

Firstly, it is important to note that the Government guidance does and has always recognised that no company can completely eliminate the risk of COVID-19 and, therefore, the duty on employers is to reduce the risk of transmission as much as is reasonably practicable.With that in mind, employers need to consider which of the following 14 publications applies to their business (it is worth noting that there is different guidance for schools, further education, childcare providers, weddings and civil partnership ceremonies, receptions and celebrations, and public transport operators) so that they can use this as a framework when undertaking a “root and branch” review of safety;

Of particular note is that all 14 publications set out “priority actions” which all employers must consider. These actions are largely based on the following “8 steps”;

Ultimately, COVID-19 risk assessments are at the heart of achieving a “secure” workplace and all 14 Government publications, along with a draft risk assessment template which has also been published by the HSE, should serve as a helpful checklist to companies when they are carrying out this task. Employers have a duty to consult with their employees, or their appointed representatives, throughout this process as set out in all 14 publications. Once this task has been undertaken, the Government guidance encourages companies to publish their risk assessments online and this is expected where they have more than 50 employees. Companies should be mindful that publication is not a legal requirement and, providing that they can demonstrate that they have carried out a suitable risk assessment, which has been appropriately communicated to their workforce, they cannot be criticised by the regulator. It is also critical that employers regularly review the Government guidance, which has changed on multiple occasions since the start of the pandemic, so as to ensure that the risk assessment and control measures that are in place are not based on guidance which is considered old and out of date. Any failure to do so is likely to result in employers being found wanting, and potentially facing enforcement action, if they are the subject of a spot inspection by the HSE.

What should employers expect going forward?

Following the announcement early last year that the HSE were to receive a cash injection of £14 million, there has, not surprisingly, been a surge of workplace inspections by the regulator - who have carried out over 64,000 site visits since March 2020.Notwithstanding this surge, the majority of workplace inspections to date have resulted in the HSE providing employers with written advice or a verbal warning in circumstances where they are deemed not to have followed “COVID-secure” guidelines. Despite having received in excess of 18,000 complaints, a recent Government briefing revealed that the HSE had only issued 3 Prohibition Notices to employers who were not following COVID-secure guidelines. This, coupled with the failure to prosecute any company for safety breaches where these guidelines were not being followed, has led to accusations that the HSE have effectively operated an “enforcement amnesty” where COVID-19 is concerned.In the face of such public criticism, and with many more businesses now re-opening, time will tell whether this will prompt the HSE to adopt a much tougher stance on enforcement. That being a possibility, employers need to ensure now, more than ever, they are following the most up to date and relevant workplace guidance that applies to their business.Contact our Compliance & Regulatory team today if you require advice regarding the Government guidelines, remaining “COVID-secure”, or indeed any other issue concerning health and safety in the workplace.Back to the top

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.