It's been another big week, we’ve seen the government's updated guidance, the ICO guidance on monitoring and the announcement from the chancellor on extension of furlough.


So where are we now?

This webinar covers the latest Government review as we enter the first stage of lifting the lockdown:

  • How to return to work safely;
  • Anticipating and managing employee relations issues on a return;
  • The unwinding of furlough support;
  • Dealing with the disparate impact of Covid-19 on different workforce groups;
  • Staying agile - experience in other jurisdictions and the second wave;
  • Data protection considerations in the UK Government’s COVID-19 recovery strategy roadmap including the new Joint Biosecurity Centre (JBC), testing and tracing.

Watch the webinar now on demand

You can also access the slides and key points below. 

 

Key points

Health & Safety issues
  • BEIS guidance is blueprint for how business can return to work safely - prepared with Public Health England, HSE, trade bodies, unions and business
  • By following that guidance you should be doing everything reasonably practicable to comply with the law, this was confirmed by the Chair of HSE in front of PSC
  • Being "Covid-secure" doesn't mean being totally risk-free
  •  It means: risk assessments, cleaning and hygiene, working from home where possible, social distancing and taking all reasonable steps
  • Check the lockdown rules in Scotland, Wales and Northern Ireland as they are not yet following the UK Government's approach of encouraging more workers to go to work.
  • Some businesses will need very little lead-in time (typically high hazardous businesses) but many others are starting from scratch with their risk assessment, implementation of control measures and are trying to e.g. procure equipment
  • Chief Executive of HSE has said that the vast majority of businesses will be safe to return to work
  • HSE enforcement strategy goes all the way from advice to enforcement, but they are expecting a massive surge in Covid-19 reports – they are getting an extra 10% of funding
  • Are they getting ready to bite? Our view is they will use advice as a main tool in early days – prosecution only likely in a small number of cases where businesses operate in contravention of enforcement notices
  • There will need to be an immediate risk of personal injury to trigger the closure of a business
  • Businesses adhering to the guidance should be compliant within health and safety law
Risk Assessments

"There is no legal duty to provide a totally risk-free workplace"

  • Covid legislation is designed to be temporary so makes no changes to existing workplace safety law, but there is a new take on risk assessments
  • Companies that are operating across borders within the UK may need to look at different rules in force in the devolved jurisdictions
  • All risk assessments should be reviewed and recorded; however there is no legal requirement to publish at the moment
  • In high-hazard workplaces like chemical, construction or energy there may be relatively little that needs to change as they already have high levels of risk management (maybe social distancing where PPE is not currently required and some enhanced cleaning; possibly travel restrictions or worries will have an impact on workers being able to get to work)
  • The greater impact will be on traditionally low-hazard workplaces like shops and offices; usually risk assessment is little more than a tick-box exercise for them
  • It will be harder for them to argue people are required to be physically present
  • But if these workplaces are open they will have to manage restrictions on where people traditionally gather such as usage of lifts and restricted circulation routes, taking desks away to enforce social distancing, and may need flexible hours and / or rotas
  • There has never been a duty on employers to risk assess to-work travel, but getting to and from work is likely to be an issue no matter how safe the office, especially in towns and cities, so employers will need to be flexible and understanding and consider if adjustments can be made at the office to assist those travelling e.g. new or increased space for cycle storage
  • Companies need to consult with employees, safety representatives and trade unions but responsibility for signing off risk assessments lies with employer
  • Good consultation processes reduce the likelihood of whistleblowing further down the line
  • It is contentious whether companies should publish risk assessments. Not a legal requirement currently and there are some risks; reputational especially, if the media or the public start sharing
  • Internal publication would probably be preferable
  • Every employee has a duty to keep themselves and co-workers safe
  • Confidence will return, but it will be slow
  • The situation is constantly evolving, guidance is changing, and so risk assessments should remain dynamic
Consultations
  • Whom you need to consult varies
  • If there is a recognised trades union, should be with the safety representatives thereof – they have a right to be consulted and involved
  • Employers will want to share their thinking with unions to ensure they feel on board
  • We can expect some unions to be very vocal (already seen eg teaching unions and transport)
  • Where there is no union or the union isn't recognised, there is a separate requirement to consult with workforce or elected representatives
  • Historically many employers haven’t put in place the process to have elected representatives, so they may now want to do that
  • Any employees consulted are protected from any detriment suffered as a part of taking on those duties
  • Need to consult the right people in order to understand everyone's jobs
  • Also need to offer training eg there is no point consulting on legal compliance if they don’t understand the requirements
  • May need to consult employees who are on furlough, and workers can act as HS reps whilst on furlough
  • Need to make time for the consultation and make clear they see it is important
  • It is vital employees feel listened to
  • If companies do publish their risk assessment they should refer to the consultation process and make clear it is ongoing
Data Protection Issues
  • Employers have a balance to strike between health and safety and employment law obligations on one side and data protection obligations on the other side
  • Employers who decide to collect additional personal data including health data will need to do so within the strict parameters of data protection law
  • Where considering monitoring or testing measures for employees, data protection requirements need to be considered.
  • Many different types of monitoring measures and tools are being considered and they all may have different implications from a data protection perspective
  • Eg at the moment a lot of emphasis on temperature testing and there are some businesses considering thermal imaging cameras – here there is a specific requirement to use the new updated data protection impact assessment (DPIA) jointly produced by the ICO and the SCC. Employers need to demonstrate that it is necessary, proportionate, and same results could not be achieved through less intrusive means
  • ICO recognises that employers may need to ask questions of employees about health in order to protect health and safety.
  • In addition to the DPIA requirement, employers should put in place a testing policy so as to meet the. transparency requirement
  • Employers may be able to rely on the grounds that processing health data is necessary as part of their duty of care and health and safety obligations
  • ICO has published new guidance for employers on workplace testing – much more granular guidance on 12 May 2020
Getting Employees Back to Work
  • Employers need to think about how engage with employees about practical aspects such as childcare, commuting, and health
  • Should start collecting information now from employees about obstacles, either through surveys or through managers
  • Larger employers may need some form of FAQs document
  • Should set a tone of being willing to accommodate issues- this will encourage employees to be willing to return to work,
  • Workers will need time to deal with issues so plenty of notice would be best
  • Three take-aways
    • collect information now
    • FAQs where you can
    • Give people plenty of notice
Vulnerable groups - different groups have different requirements
  • This is very complex – many of these complexities have been deferred because of furlough, the extension of furlough scheme is helpful
  • Where companies are considering unfurloughing employees it may be more straightforward to leave vulnerable groups on furlough

There are three separate groups

  • The clinically extremely vulnerable
    • Should work from home where possible with duties adjusted; if they can't they are entitled for statutory sick pay, and may be entitled to company sick pay under company policy, or if they have a medical condition
    • Failing to pay company sick pay could be construed as discrimination, and they could also say they have suffered an unlawful detriment
    • Also a PR risk!
  • The clinically vulnerable (eg obese or over 70)
    • If cannot work from home, employer must take all reasonable steps to make the workplace safe
    • Probably not entitled to sick pay, but this may still be the best route, not last as may be a risk they suffer a detriment
    • (subsection: pregnant employees: adjustments should be made (as usual) or otherwise they should be paid and remain at home until maternity pay kicks in)
  • Those living with clinically [extremely] vulnerable:
    • not entitled to sick pay, but the employer may take view that can stay on sick pay, otherwise they too may have a claim
  • There are others who might be at risk: eg BAME groups, but this is an evolving area
What about where people are fit and well but still don't want to come back?
  • This is where engagement and communication will be key
  • Good for employers to have a hotline – not whistleblowing – for workers to raise concerns without it being badged as whistleblowing (albeit it might technically be under the legislation)
  • Ultimately if an employee refuses to come to work when all necessary risk assessment and adjustments made could be grounds for disciplinary action or withheld pay but should exercise real caution because of the risk of detriment claims, and where unionised, the risk of industrial action
  • Overall message – tread with caution
The 3 take away points
  • PREPARATION
  • CONSULTATION
  • COMMUNICATION

Key Contacts

Michael Leftley

Michael Leftley

Partner, Head of Employment, Incentives & Immigration Group
London, UK

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Erin Shoesmith

Erin Shoesmith

Partner, Health & Safety
United Kingdom

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