Despite WHO Director-General Dr Tedros Adhanom Ghebreyesus warning back on 4th March 2020 of a “rapidly depleting” stock of gloves, medical masks, respirators, and hand sanitizer the situation continues to be a cause for real concern when it comes to frontline workers battling COVID-19.
Dr Rinesh Parmar, chair of the Doctors’ Association UK, told the Guardian just a few days ago “the longer this epidemic goes on for, if doctors feel that there is a widespread lack of personal protective equipment [PPE], then some doctors may feel they have no choice but to give up the profession”.
Whilst the need for those still working in a clinical environment to wear appropriate PPE may be obvious, it is not just public services who are obliged to protect their employees in this way. All employers still operating a business have a duty to safeguard the health and safety of their workforce and failure to do so could lead to an investigation by the Health and Safety Executive (HSE) and the spectre of criminal charges.
With business secretary Alok Sharma announcing regulatory changes to allow companies flexibility in the way they hold annual general meetings; with insolvency rules being relaxed to permit businesses to keep trading, with a temporary suspension in the enforcement of certain EU directives on drivers’ hours; and administrative barriers being removed to facilitate key workers stepping into the breach, now more than ever employers will face a tough balancing exercise between profits and adequate employee safety .
This article seeks to highlight some of their key health and safety obligations during the pandemic and attempts to give guidance on how best to comply in these uncertain times.
The Genesis of the General Health and Safety Duty
A great deal of legislation has been passed since the Georgian Health and Morals of Apprentices Act 1802, thought to be the genus of the modern era of improved conditions of safety at work.
The current day principal duty on employers can be found at s.2(1) of the Health and Safety at Work Act 1974 which states that ‘It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’.
This rather general proposition is then supplemented by an array of statutory instruments which set out in much greater detail exactly how this duty is to be carried out.
It is plainly hugely important for employers to be aware of their obligations in order to protect their staff and limit the spread of the virus, but also to avoid prosecution by the HSE.
By virtue of s.33 of the Health and Safety at Work Act 1974, breaching the general employers’ duty or any of the regulations is a criminal offence, punishable by up to two years’ imprisonment and/or an unlimited fine (for conduct after 12th March 2015, the date s.85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force).
Compliance is therefore key.
The vast majority of employers will already be familiar with the health and safety legislation relevant to their industry and have internal policies in place to keep them legally compliant. Certainly there has been a steady decline since 2015 in the number of HSE prosecutions, a sign perhaps of greater observance.
However, this unprecedented pandemic calls for a review of such policies to ensure that, where Coronavirus is bringing new challenges, businesses are implementing policies which keep their staff safe and their businesses insulated from prosecution.
Key Obligations during the COVID-19 outbreak
The Personal Protective Equipment at Work Regulations 2002 would ordinarily have little relevance to those working outside of the construction industry or coming into contact with hazardous substances. The regulations arguably now however have much wider application. S.4(1) dictates: ‘Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective’.
Therefore, any businesses that require their staff to come into contact with members of the public, or even other members of staff, may be required to provide some level of PPE at the present time. This captures a wide range of institutions from prisons to construction yards to schools to supermarkets and pharmacies.
PPE is broadly defined in the regulations and no specific equipment is prescribed. What is stipulated is that the PPE be ‘appropriate for the risks involved’, ergonomic and fit the wearer correctly (s.4(3)). It could be for example that the environment requires Respiratory Protective Equipment (RPE) as opposed to more basic forms of PPE such as disposable masks (Type FFFP3).
Provision of appropriate PPE alone does not go far enough though and employers retain an ongoing duty to ensure the maintenance and replacement of (s.7); safe storage of (s.8); and instruction and training on the use of (s.9) the equipment.
Another regulation which has greater significance now more than ever is the requirement to provide ‘readily accessible’ washing facilities including soap and hot water according to s.21 The Workplace (Health, Safety and Welfare) Regulations 1992.
Increasingly scarce (despite the recent derogations allowed for producers by Article 55(1) of the Biocidal Products Regulation 2012) and expensive hand sanitizer (of over 60% alcohol in accordance with guidance from Public Health England (PHE)) on its own will not discharge such an obligation.
The HSE (see https://www.hse.gov.uk/news/drivers-transport-delivery-coronavirus.htm) have already identified couriers and drivers as a particular class of employee being deprived of the ability to wash their hands regularly, which is both illegal and irresponsible in the current climate.
Practical Steps towards better Compliance
It is beyond the scope of this article to consider every health and safety regulation that may potentially be engaged during the COVID-19 outbreak. However, there are simple steps that all employers can take to ensure that they are protecting their staff and fulfilling their legal obligations.
Firstly, to review existing internal health and safety policies by performing a risk assessment. This is in fact a requirement in itself under s3(3) The Management of Health and Safety at Work Regulations 1999 whenever there is reason to suspect that an existing risk assessment may have become invalid. Performing the risk assessment should assist in identifying the measures that each business needs to put into place. A copy of a template risk assessment can be found at https://www.hseni.gov.uk/publications/example-covid-19-risk-assessment-template
Secondly, it is important to remember that the legislation states employers must protect staff ‘as far is reasonably practicable’. There is no expectation that businesses will be able to 100% guarantee that their staff will not contract Coronavirus, just that sufficient precautions have been put into place. That is not to say that the obligation should not be taken seriously, but that particular measures i.e. full face masks and gloves, may not be necessary or appropriate for every workplace.
Other measures such as increased cleaning regimes, allowing staff to work from home, or limiting the number of customers in a shop at any one time may suffice.
Some employers have even been asking all visitors to the workplace to self-declare any exposure to potentially affected persons or recent trips to particularly affected countries. Whilst individual COVID-19 cases are not yet subject to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 which require employers, self-employed and those in control of premises to report workplace incidents, such advice may still be sensible.
Thirdly to pay close attention to fast-emerging government guidance and in particular information provided by the Health and Safety Executive. See https://www.hseni.gov.uk/news/coronavirus-covid-19-and-hseni-contact-details-updateo.
Any business in doubt about their specific obligations during this time can also seek assistance from an array of sources such as trade unions, local authorities or other industry specific professional bodies.
The outbreak of COVID-19 has brought uncertainty to almost every aspect of our lives and the workplace is no different. Employers must be vigilant to the fact they have both a moral and legal duty to limit their employees’ exposure to Coronavirus.
Whilst the HSE is now predominantly focused on assisting the Government with its response and not on investigating breaches, with a reported 900% increase in complaints on 30th March 2020 of workplace violations of social distancing and other PHE guidance the prospect of future prosecution when the dust has settled is obvious.
As Rachel Reeves, Labour MP and head of the Business Select Committee has already stated,
“In time, businesses will be held accountable for their role in what they’ve done in this pandemic.”
However, by regularly performing risk assessments, reviewing internal policies and keeping up-to-date with official guidance, the particular challenge presented by the pandemic is manageable.
Charles Durrant and Letitia Egan
3 Temple Gardens