Daily Coronavirus Webinar: Returning to work safely

Overview:

Today's webinar took the form of a conversation between the CBI’s Chief UK Policy Director, Matthew Fell; the CEO of the Health and Safety Executive, Sarah Albon; and Senior Employment Partner at Hogan Lovells, Ed Bowyer. The main subject of the discussion was returning to work safely, although we spanned across a number of areas:

• The evolution of the government’s economic support package
• Questions about the new back-to-work guidance
• Risk assessments, the same but different
• The assessment starts with conversation and continues with flexibility
• The role of personal protective equipment (PPE).

The economic support package

Matthew began by discussing a week of “welcome and encouraging developments in terms of the government support”. There was the big announcement on the Job Retention Scheme (JRS) on Tuesday, of course: it will continue to the end of July in its current form, then to the end of October in a “more flexible” form.

But there was also an announcement yesterday about Trade Credit Insurance (TCI), which, as the CBI has warned, was at risk of drying up unless the government stepped in. “This may seem like a niche issue,” explained Matthew, “but it’s actually really important for making sure that supply chains flow effectively.” He continued: “The government will now step in and provide temporary reinsurance agreements to make sure that it continues to work.”

But the CBI has some questions, too. The first of these is about the nature of the JRS after July: what form will the flexibility take? Our understanding, said Matthew, is that “this is still up for grabs as a conversation”. We expect that the government will insist on furloughed staff still receiving at least 80% of their salary – but with a smaller government contribution, and businesses having to make up the difference. But, generally speaking, we’re eager to hear from businesses about what would be useful for them.

And there is also the question of transport. Not just the issue of capacity on public transport, but also the issue of cross-border travel. The government has announced an upcoming 14-day quarantine for people arriving in the UK from abroad. And, as Matthew put it, “this is not just an issue for the aviation industry” – we have been receiving more and more messages from other businesses who are concerned about what this means for their staffing practices. “It has ripple effects across the whole economy.”

Back-to-work guidance

This week also saw the publication of the government’s safety guidance for businesses that are returning to work. Matthew picked out some of its key features: it applies to eight different work settings, from factories to offices; it allows something that the CBI called for, “flexibility within a framework”; and it builds on the pre-existing guidance and the “innovations and good practices” that businesses have already introduced.

“Overall,” said Matthew, “the reaction from businesses has been pretty positive.”

Once again, however, the CBI and the business community do have some follow-up questions. Compliance is one of the main ones: “Legally, where do I stand on this guidance? What is ‘must do’ versus ‘best attempt’?” But there also other questions, around dispute resolution, PPE, transport and more. We are continuing to put these questions to ministers.

Risk assessments, the same but different

Our webinar audience had plenty of questions, too – many of them revolving around risk assessments in the time of coronavirus. Thankfully, in Sarah and Ed, we had two people who could answer many of them.

Sarah began by saying that “it is important to remind everyone, you were already under an obligation to do a risk assessment”. She advised that employers should look at existing risk assessments as an example of the level of detail that’s expected – with or without C-19. She added that the pandemic shouldn’t mean that businesses “ignore all the other risks” in the workplace.

But the pandemic does mean that some risks may need to be looked at differently. Sarah gave the example of a heavy box: in the past, a business might have preferred two people to lift it; now, so long as it’s possible, there could be a case for one person lifting it, to avoid two people coming into close contact. Coronavirus is now part of the “balance of risks,” and needs to be considered “as [part of] a system”.

Sarah also highlighted that the HSE has a number of online resources to help businesses work through those considerations.

Conversation, then flexibility

Sarah, Ed and Matthew all agreed that the risk assessment process should involve conversation with employees – whether directly or through employee representatives, such as unions. There is a legal aspect to this, explained Ed: “Employers are under obligations to consult on the return to work.” But there is also a practical aspect, Matthew added: “Employees are the best-placed people to identity how you go about social distancing in the workplace.”

With the conversations undertaken, it is important for employers to be flexible – and account for a variety of situations and sensitivities. Ed gave a very useful rundown of the sort of “triaging” that may need to take place with an employee who may not yet want to return to the workplace:

• If they can work from home, they should be working from home.
• If they cannot work from home, can they work differently in the office? Have a “special area” in the office? Or a different shift so that they can avoid peak travel times?
• If they’re still not happy, could they do something entirely different from home for the next few months?
• If not, could you look at furloughing them?
• Or at holiday time?
• Or unpaid leave?

These are, said Ed, the sorts of questions that employers should be going through before considering “disciplinary situations”. It is also the sort of thinking that should be applied when determining what is “reasonable” for ensuring safety and wellbeing in general. “Employers are going to have to be quite flexible and quite innovative.”

What’s more, confirmed Ed, the argument that something is “not reasonable” because it is “expensive”… “doesn’t work”.

The role of PPE

PPE is on the minds of many businesses as the economy restarts. Who needs it? And when?

Sarah said that “the guidance is really clear on this”. There are a “number of settings where PPE is appropriate,” she explained; mainly frontline healthcare roles, but also those jobs – in, say, dusty environments – where “PPE is normally required”.

Otherwise, Sarah said, “the strong advice from Public Health England is that social distancing and scrupulous hygiene are the best methods of risk mitigation for coronavirus”.

On the specific matter of face coverings, Sarah pointed out that “there is no evidence at all that they will provide any safety benefits for the person wearing the coverings… there is some evidence that it is a slight benefit for protecting other people from you, if you have coronavirus”. This is what has informed the guidance about wearing face coverings on, for example, public transport.

Sarah doesn’t think that many businesses will put face coverings “into their risk assessments” – not least because HSE’s guidance suggests that there are “risks from not wearing [it] well”. “You must remind the employee that they must wash their hands before putting it on, don’t touch it while wearing it, and then wash your hands again after taking it off…”

Key questions we answered:

1. What new insight is there on the core enablers are there that need to be in place to actually get people to work?

• On schools:
  • From 1 June (at the earliest) educational settings are being asked to begin a phased return for more children in addition to those who have continued to attend.
  • Nurseries and other early years providers will begin welcoming back all children.
  • Primary schools will welcome all pupils from nursery, reception, year 1 and year 6.
  • Secondary schools, sixth forms and FE colleges will open face to face for year 10 and 12 pupils but it’s not expected this will be on a full-time basis.
  • No plans announced yet about welcoming back pupils not in these priority groups but the government’s ambition is to bring all primary year groups back to school before the summer holidays for a month (if feasible).
  • These measures should support employees with children in these priority groups to return to work, however, employers should note schools, colleges and nurseries may introduce revised hours or phased returns for pupils outside normal hours.
• On travel:
  • For passengers, the message is clear – work from home where possible.
  • Operators are reiterating the 2m rule and newly recommending the use of face coverings on public transport (but this is not required by law).
  • They’re also requesting passengers to avoid rush hour. This places the onus on discussion of staggered start and finish times with employers.

2. And what about the requirements around PPE in the workplace?

• There is no requirement to provide additional PPE beyond what employees would usually wear, outside of clinical settings, and employers should not encourage the use of extra PPE. If employees do decide to wear facemasks, employers must tell them to wear them safely.
• This helps businesses (e.g. food & drink, care) where PPE is essential for re-opening, but doesn’t necessarily have to meet NHS standards.
• The advice is that social distancing and scrupulous hygiene are the best methods of risk mitigation against coronavirus. So you want to think about how you stop people being close to each other for a long length of time – e.g. walking past a colleague is not a problem.
• Hand hygiene protocols, stopping surfaces being touched, automatic doors etc. these are the kind of things you should consider.
• There is no evidence at all that a face covering will provide protection for the individual wearing the covering.

3. To Ed, a lot of employers are worried they could find themselves accidentally on the wrong side of the law in their response to the Coronavirus. How worried should they be?

• It is something that all employers have to take extremely seriously. The consequences of not taking it seriously would be very damaging.
• All employers have a huge responsibility to their staff.
• Employers are under obligations to consult under the health and safety rules, and the guidance, on the return to work.
• There are bound to be many issues in each set of companies.

4. To Sarah, on risk assessments, what level of detail might be required in a good risk assessment?

• It is important to note that employers were already under a legal obligation to carry out a health and safety risk assessment on their workplace. The guidance hasn’t introduced a new requirement to this.
• Your previous risk assessment should give you an idea of the level of detail you will need for the updated version.
• We are looking for the assessments to consider Covid-19 as a new risk to be listed alongside the pre-existing risks that you considered before the crisis.
• We have created a toolkit to help you think through risks systematically – we encourage people to look at it.

5. To Ed, how important are employee consultations in the process of a company developing a risk assessment?

• Talking to employees will be important. Plenty of clients are talking to health and safety experts who have the professional view on what safety looks like.
• If you can demonstrate that you have reacted to staff concerns throughout the process, that will go down very well with your employees and mitigate against the risk of any claims.
• I would say that employees are best placed to identify how social distancing can be implemented in the day to day operation of a company.
• There are heightened uncertainties around this area as people have legitimate concerns about being made to come back to work. Please be sensitive to this.
• My final thought is, don’t make your consultation a one-off exercise. Recognise that concerns and safety issues will evolve over time. Keep communicating.

6. To Sarah, how should businesses be approaching risk assessments if they have operations across the UK?

• The Coronavirus doesn’t respect borders. So the risks are the same. The issues are around the permissions and what you are allowed to do.
• Think about the risks irrespective of the borders. Then respect the local guidance and laws around the pace of your reopening, and the kind of businesses that can be brought back.

7. For a company that has consulted, taken reasonable precautions, but still has an employee who refuses to come to work, what options do they have?

• If they can work from home, they should do so.
• If they cannot work from home, but are unhappy to come into work, is there something different they can do in the office? Can they have a special place in the office that is safer? Can their shift be staggered? Can they have alternative transport arrangements?
• If these options have been considered, and they are still not prepared to come into work, is there a different role that you could give them to enable them to work from home? If that fails, can you consider furloughing them? Can you look at giving them paid holiday for a short period, or can you look at unpaid leave?
• The point is there are many options employers can consider before getting to the point of not paying their employee and disciplining them.

8. For businesses trying to oversee a return to work, what are the rights and wrongs of asking people, who are returning to work, to sign a declaration that they have accepted the risks of returning to work?

• If you do get that signed declaration, that is not a silver bullet for an employer. It certainly wouldn’t stand up in a court.
• I would question why employers would do this given they do not have to. There is nothing in the law that compels them to do this.
• Ultimately, failing to do all you can to keep your workforce safe, under the guidance of the Health and Safety at Work Act, is a criminal offence. There is no such thing as informed consent in that context.