Lawyer Warns Businesses Not To Ignore Their Health & Safety Legal Obligations

The COVID-19 crisis continues to present something of a conundrum and although the Government appears to be in a ‘damned if you do and damned if you don’t scenario’ in terms of its response to the crisis, there are some important issues to be aware of in terms of health & safety in the workplace.

There is a balance to be made, it would seem, between public and economic wellbeing.  Many businesses are either buckling or have already failed under the pressures brought by the lockdown.  Before this issue even arose, it has been suggested that the economy stagnated during the final quarter of 2019.  Last week the Chancellor Rishi Sunak announced that the economy shrank by 2% in the first three months of 2020 and that following the implementation of the lockdown in March, it was pushed into decline after just “a few days of impact from the virus”.  Consequently, he concluded that it is "very likely" that the UK is already in a "significant recession".

This news came only a couple of days after the Prime Minister announced some relaxations to the lockdown.  The message changed from “stay at home” to “be alert”.  We know that a new five level COVID Alert Level System has been introduced with each level relating to the level of threat posed by the virus, based upon the ‘R’ value and the number of coronavirus cases.  The threat level will in turn determine the social distancing measures needed to be in place.  The lower the level, the fewer the measures.

Aside from the relaxations, there has been some welcome easing for business.  Non-essential retail can start to re-open when and where safe to do so.  Perhaps most significantly was the provision that those who cannot work from home should speak with their employer about returning to work.  From Wednesday of this past week, there has been a widespread return to work in a number of sectors.  The Government has apparently consulted with industry to produce guidelines to help ensure that workplaces are as safe as possible with workers being protected.  To ensure that social distancing measures are satisfactory, the guidance covers the following areas:

• Construction and Outdoor Work;
• Factories, Plant and Warehouses;
• Lab and Research Facilities;
• Offices and Contact Centres;
• Other People’s Homes;
• Restaurants (Take Away and Delivery Only);
• Shops and Branches; and
• Vehicles.

This guidance can be found here and it may well be the case that a single business will have to follow more than one guideline in order to ensure safety for its employees in relation to the different facets of what it does day to day.  In contemplation of all that will need to be undertaken to ensure the fullest mitigation of risk, this is not a straightforward exercise.  

The guidelines outline practical steps for employers to take, including carrying out a COVID-19 risk assessment, in consultation with employees or trades unions.  A downloadable notice is included in the documents, which employers should display in their workplace to show their employees, customers and other visitors, that they have followed this guidance.

…And Now the Sting

When the Prime Minister announced that penalties for members of the public infringing the social distancing requirements would be increased, businesses are not excluded from sanction.  Indeed, firms could face prosecution if they fail to keep the workplace safe or ‘COVID-19 secure’.  When reasserting the enshrined duty of employers to keep their employees safe, the Business Secretary urged employees who felt unsafe to report their concerns to the Health and Safety Executive or the local authority.

To ‘support’ employers and employees through this, the Government has made up to an extra £14 million available for the Health and Safety Executive (equivalent to an increase of 10% of its budget) for extra call centre employees, inspectors and equipment, if needed.  The head of the Health and Safety Executive (the ‘HSE’), Sarah Alban, had already expressed her view that businesses which could not abide by safety practices should not re-open.  Moreover, she told the Work and Pensions Select Committee that between 9 March and 7 May 2020 the HSE had received approximately 7,150 Coronavirus related calls or online queries from people worried about their safety at work. Approximately 1,400 of these were referred to HSE Inspectors to follow up with employers.  

The HSE will do on the spot inspections at re-opening workplaces to check whether firms are keeping people safe.  Its Inspectors can issue Enforcement Notices that require businesses to take certain kinds of action to be compliant.  In more extreme circumstances where there are risks of serious injury to individuals, its Inspectors can issue Prohibition Notices to stop certain activities taking place.  These can be inconvenient and costly for businesses to remedy.  Breaching or ignoring such Notices represents a criminal offence for which the business can be prosecuted.  Changes to the Sentencing Guidelines for Health and Safety offences in recent years has seen the potential level for fines soar and then there are the added costs of the Court and the HSE to be factored into the equation.  There can even be custodial sentences for individual directors in some situations.  In short, falling under the HSE’s microscope is best avoided.

If you have any concerns about what to do in terms of risk assessments and if you feel that your business is potentially exposed then Irwin Mitchell has expertise and can advise on how to approach returning to work safely.