COVID-19 lockdown release ~ how employers can avoid prosecution

6 May 2020

Following this weeks media ‘stir up’ on the stages of release of lockdown (which still feels serial typing), you will no doubt be feeling anxious about your employees and contractors returning to work? 

How do you resume your ‘normal’ business operations? What will you need to have in place?  Can my employees claim?  Can they still work at home?  Can we do this without being named and shamed?  How do we adapt our policy?  Where do we get PPE and equipment? How do we deliver the right training? This is another cost to our business, can we survive? Are our people competent to carry out risk assessments, training in relation to COVID-19 risks? Can we do this? Can I keep the people safe? What do I need to do? Will I be prosecuted… 

Our phones and inbox have been inundated with all of the above questions from our existing and new clients, you are not on your own. 

We want to share some more humanised information, following are blog and practical advice to avoid prosecution and ensure the safety of your people. 

Health and Safety legal obligations?

We always start with our obligations in sections 2 and 3 of the Health and Safety at Work Act 1974, which as it is an Act, it is a criminal prosecution and with it brings hefty fines and potential imprisonment!

Section 2 states ‘all reasonably practicable steps must be taken so as to ensure the health, safety and welfare of your workers’ and ‘anyone else impacted by your operations’, Section 3. This will now include keeping up to date with the work-related risks posed by COVID-19, as well as planning and implementing all reasonably practicable risk mitigation measures, this is our new bio hazard! 

Then there is the requirement in Regulation 3 of the Management of Health and Safety at Work Regulations 1999, which are more specific, stating you must carryout “suitable and sufficient” risk assessments of the health and safety risks faced by your employees, as well as non-employees who are affected by your operations. Risk assessments must be in writing and documented if you have 5 or more employees; and they must be reviewed or updated when the circumstances change. 

Circumstances, knowledge and ongoing research and development about COVID-19 risks are changing so fast, so you will need to keep up to date of the latest developments and act accordingly and work with your appointed H&S team, like LCS, as that is another requirement under Regulation 7 of the Management Regs, you must have a competent appointed person!

There are also additional requirements under a number of Regulations, one in particular, the Personal Protective Equipment at Work Regulations 1992: to provide suitable PPE. The obligations include that PPE must be appropriate for the risks and conditions involved, capable of fitting correctly and must be assessed as suitable and effective, so far as is reasonably practicable, to prevent or adequately control the risk. Employees must be given adequate information, instruction and training regarding PPE, which must also be maintained, cleaned and replaced as appropriate. Last but by no means least, all reasonable steps must be taken to ensure that any PPE is properly used. Feels like a minefield of information!

Enforcement, criminal and civil action?

The HSE say their regulatory approach will “take a flexible and proportionate account of the risks and challenges arising from the pandemic”. This may include fee for intervention (FFI) notices, improvement and prohibition notices and criminal prosecution.

With anxiety at a high, people feeling scared and loss of loved ones, workers could and have the right to report non compliance with health and safety to the HSE or local authority regulators ( your loan council borough) if they feel unsafe and believe no support or measures have been implemented in the work place! 

The risk of prosecution will grow and will be very much and additional focus, not just in the health and safety industry, but within our global society.

Prosecutions both criminal and civil can be brought even if there is no actual injury, offences may mostly concern exposure to risk. Meaning it won’t usually be a successful defence to argue that someone could have contracted the virus outside the workplace, what will matter and be used as mitigation, is whether you have failed to take reasonably practicable steps and thereby exposed people to the risk of contracting the virus.

What do I have to do as a business owner/employer? 

Addition to the Health and Safety at Work Act and additional Regulations, it will be necessary to follow the Government’s rules and any revisions as the rules are relaxed, particularly in relation to specific sectors, like the construction industry, manufacturing and hospitality. 

To comply with the Act and Regulations, it will also be necessary to revise, renew or create relevant risk assessments specific to COVID-19 prior to and returning to work. Your COVID-19 return to work plan, procedures etc, must identify the hazards and set out mitigation and control measures. Details will depend on your organisation, sector, work activities, workforce and premises.

You will also need to consider your peoples anxiety in returning to work and make plans and arrangements that accommodate your peoples demographics and individuals needs, vulnerabilities, including age, pregnancy, mental health and relevant illnesses. The 2 metre guideline, may on occasions have to be breeched, so you will need consider other mitigation such as PPE and how to reduce the duration of such close proximity and just why and how you have controlled the risk of the virus exposure. 

We have been reviewing and putting together procedures, evolving risk assessments, zone plans, shift pattens, welfare arrangements, training packages and employee questionnaire with clients.  Along with plans for social distancing, revising workstation and workplace layout, plant, heating and ventilations systems and maintenance.  Don’t forget travel, driving and commuting as this may also be your responsibility? 

To simplify all of the: risk assess, mitigate the hazards, put in procedures, training, consultation and communication and document everything in writing.  On the argument you have considered in order to demonstrate that you have done everything so far as reasonably practicable.

For difficult decisions, documentation and ongoing friendly understandable support, you may want advice from a specialist Chartered Health and Safety Company. 

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