COVID-19: A healthy and safe return to the workplace

Updated 15 March 2021

On 4 January 2021, the UK Government introduced a third national lockdown and has undertaken a rapid vaccination programme. Infection rates have since decreased across the country and the Government has published its 4-step roadmap to easing restrictions (subject to specific tests being met). The position with regard to work has not changed. For the vast majority, homeworking is set to continue until at least May 2021.

The amended Regulations state that individuals may only leave home "for the purposes of work... where it is reasonably necessary". The Government guidance states that you may only leave home for work purposes if you "cannot reasonably work from home", and includes a non-exhaustive list of critical workers. There is also new language regarding expectations on efforts to be made by employers which must take "every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working".

It remains the case that where it is not reasonably possible to work from home, individuals may go to work. Employers need to carefully assess whether this exemption applies and whether physical attendance is reasonably necessary.

Updated 5 November 2020

In view of the increasing infection rates, the Government has today implemented new national restrictions in England. This second national lockdown will apply from 5 November 2020 until (at least) 2 December 2020 and marks a clear return to homeworking. Under new Regulations governing the latest restrictions, individuals may only leave home "for work purposes... where it is not reasonably possible [...] to work from home". Failure to comply is a criminal offence. This is a gear change from previous guidance which said that "everyone who can effectively work from home should do so", and which provided more scope for some to attend the workplace.

The Government guidance for offices and contact centres has also been updated. It now says "office workers who can work from home should do so" (no "effectively" as before) and that "employers must ensure that workplaces are safe for anyone who cannot work from home". It retains the existing suggestion that employers should consult with employees to determine who should come into the workplace with higher consideration given to people at higher risk. The updated guidance again points to a narrow group of staff going to office jobs, albeit worth reiterating that the legal test remains that in the Regulations - where homeworking is not "reasonably possible".

The guidance also deals with clinically extremely vulnerable individuals. Individuals in this category are strongly advised to work from home. If they cannot work from home, they should not attend work for this period of restrictions. Clinically extremely vulnerable individuals who cannot attend work for this reason may be eligible for support, including SSP or furlough. Individuals who live with those who are extremely vulnerable but who are not themselves clinically extremely vulnerable can still attend work.

Updated 24 July 2020

Following the announcement from the Prime Minister on Friday 17 July calling for more employees to return to their workplaces from 1 August, the workplace guidance has now been amended to reflect the government’s wish to encourage staff back to the office.

The updated guidance moves the onus for deciding on office working firmly onto the employer, in consultation with their staff.

The key points to note for employers are:

• Employers should consult with employees to determine who should come into the workplace safely.

• In doing so, employers should take account of:

  • the person’s use of public transport;
  • childcare responsibilities;
  • protected characteristics; and
  • other individual circumstances.

• Extra consideration should be given to those people at higher risk.

• Employers continue to be required to consider the maximum number of people who can be safely accommodated; should plan for a phased return and should monitor well-being of those at home.

• The recommendation against the use of public transport has been removed but individuals are encouraged to walk or cycle where possible.

• The guidance now says that “wearing a face covering in an enclosed space helps protect individuals and those around them” from covid-19 and that people are “encouraged to wear face coverings in enclosed public spaces where there are people they do not normally meet”. It does not suggest widespread mask wearing in offices but employers may want to think about whether there are any circumstances where this would be appropriate.

• There is a new section on using ventilation to mitigate transmission risk and extra bins for face coverings.

Otherwise the guidance remains unchanged – in particular in relation to one metre-plus social distancing and working time staggering.

The final guidance on when face coverings are required has now been published. The new rules come into force from 24 July 2020.

Updated 13 July 2020

While we are awaiting clarification on the government’s intentions regarding home working, the guidance for office workers continues to be updated as employees tentatively consider returning to the workplace.

The specific easing of restrictions to note for employers are:

• social distancing “1 metre plus” is acceptable with risk mitigation where 2m is not viable
• although indoor gatherings should be limited to no more than 6 people, businesses following covid-secure guidelines can host larger groups
• this is also the case for events in public outdoor spaces that are organised by businesses, charitable or political organisations, and public bodies, provided they take reasonable steps to mitigate the risk of transmission, in line with COVID-19 secure guidance and including completion of a risk assessment. Any other gathering in an outdoor space must not be any larger than 30 people.

Other sections have also been updated in line with this: construction & other outdoor work, factories, plants & warehouses, labs & research facilities, offices and contact centres, shops & branches.

Updated 09 June 2020

While the latest UK government guidance still expects employees to work from home if they can, many businesses are now starting to grapple with balancing the benefits and the risks of a return to the workplace under the shadow of coronavirus. Health and safety-related risks loom large in this difficult balancing exercise, many of which raise novel and challenging issues.

It should also be noted that in planning for employees to return to work, the Health Protection (Coronavirus, Restrictions) England Regulations 2020 were updated by the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations 2020 with effect from 1 June 2020. The updated Regulations have removed the offence of being outside the home without a reasonable excuse and have replaced it with the offence of staying overnight at any place other than the home without a reasonable excuse. The significance of this for employers is that although UK government guidance continues to recommend that employees work from home where possible, this is not the law, and there is no longer the risk of employers committing a summary offence based on their assessment of whether it is reasonably possible for an individual to return to the workplace.

There is a plethora of government, ACAS and HSE guidance in relation to COVID-19 and return to the workplace. This note is intended to provide a high-level overview of the underlying legal obligations which may arise in this context.

Underlying health and safety legislation

There is a broad range of statutory obligations relevant to health and safety. Historically, for many office-based businesses, these obligations have not been under the spotlight because office environments have been considered relatively low-risk. Coronavirus has changed all of this, meaning that businesses will have to focus on these requirements more than ever, in particular:

• Health and Safety at Work, etc. Act 1974 (the HSWA) under which:

  • employers have the duty to safeguard, so far as is reasonably practicable, the health and safety of their employees at work (and persons other than their employees who may be affected by the employer's undertaking);

  • employees have to take reasonable care for the health and safety of themselves and other persons who may be affected by their acts or omissions at work and to co-operate with their employers so far as is necessary to enable them to comply with their health and safety duties; and

  • employees have the right to be consulted about new measures that could substantively affect their health and safety, challenge the adequacy and suitability of any safety arrangements, and even to refuse to return to a workplace they consider unsafe.

• The Management of Health and Safety at Work Regulations 1999 (the Management Regulations) which require employers to:

  • make a suitable and sufficient assessment of the risks to the health and safety of their employees at work and of persons other than their employees arising out of, or in connection with, their undertaking; and

  • put in place appropriate arrangements for the planning, organisation, control, monitoring and review of those measures identified in the risk assessment as being necessary.

• The Safety Representatives and Safety Committees Regulations 1977 and Health and Safety (Consultation with Employees) Regulations 1996 (the Consultation Regulations) which require employers to:

  • consult in good time with safety representatives from recognised trade unions, directly with employees or with elected employee representatives in relation to designated health and safety matters.

Applied to coronavirus, these provisions create statutory obligations on employers to:

• take all reasonably practicable steps to prevent their workers and others from contracting the illness; 

• carry out risk assessments in relation to returning to work while coronavirus remains a threat, put in place measures identified in such a risk assessment, and publish their COVID-19 risk assessment on their website; and

• consult with employees about such measures.

The government has published industry specific guidance on working in offices and contact centres here, which is intended to support employers in demonstrating compliance with these obligations. However, this guidance is not the law and does not discharge the duty on an employer to make their own COVID-19 risk assessment tailored to its own workplace and implement its own measures to minimise those risks in accordance with relevant health and safety legislation.

Crucially, and unsurprisingly, it is not possible to contract out of these statutory obligations. Moreover, on top of any civil liability towards employees (see below), breach of health and safety legislation can constitute a criminal offence for which a company and individual directors can also be held criminally liable.  At an extreme (although this is clearly very unlikely in a corporate environment), employers should also be mindful of the offence of corporate manslaughter.

Common law duty of care and duty of trust and confidence

In addition to the statutory duties outlined above, employers owe common law duties of care towards their workers (and others) in relation to risks associated with coronavirus. This common law duty overlaps substantially with an employer's statutory obligations, but in certain circumstances could be broader. For example, it is possible that employees could argue that their employer owes a duty of care towards members of their family. (Note: there are significant challenges in establishing such a claim and in proving the cause of infection but this does not preclude claims being made against perceived deep pockets.)

Other legal obligations / risks to be managed

Compliance with health and safety legislation must take priority in any return to the workplace. However, implementing a return to the workplace must be placed in the context of other legal obligations which must also be handled with care and delicacy. For example:

• Discrimination law: there is a potential tension between the obligation not to discriminate against an individual because of a protected characteristic and the need to protect vulnerable employees (defined under the Health Protection Coronavirus Restrictions (England) Regulations 2020), such as those who are pregnant or have disabilities. While these are risks that can be navigated with careful planning, it is important to ensure that any decisions are  based on objective and non-discriminatory criteria, and, especially in the case of employees with disabilities, whether any reasonable adjustments can or should be made to enable them to return to the workplace (or indeed to allow them to remain working from home).

• Selection processes: particular care must be taken in identifying employees for return to the workplace (particularly where there is an economic impact on those employees who are not returning to the workplace - for example if they are on furlough and not being paid their full salary). Employees may claim that their selection to return to the workplace was not handled fairly or objectively, as part of a constructive dismissal claim, or if they are selected for redundancy at a later date or that it was discriminatory (eg female employees who have taken on more childcare responsibilities during the pandemic arguing that they have had fewer opportunities).

• Collective consultation obligations: it is possible that proposed changes to terms and conditions in connection with a return to the workplace could trigger collective consultation obligations.

• Using and requesting personal data about health: on the surface it seems eminently reasonable to request information about the health of an individual or their immediate family to make decisions about that person's return to the workplace, such as asking whether they have contracted coronavirus or are living with anyone who has.  However, this data will likely amount to special category personal data, within the meaning of the General Data Protection Regulation and the Data Protection Act 2018. It is therefore imperative for such requests and the processing of data derived from them to comply with those statutory requirements. For further information please see our insight here. Broadly speaking, collecting this information can be justified under data protection law if it is relevant and necessary to protect the health and safety of employees. However, care should be taken not to ask for information that goes beyond that which is necessary for making an informed decision as to whether someone can return to work. In addition, businesses should also review and update their privacy notices to address this processing. In this regard, businesses should consider the guidance from both the government and the World Health Organisation at the time of preparing any health questions. The Information Commissioner has also published guidance on this topic and has specifically recommended that businesses conduct a data privacy impact assessment (which must then be reviewed and updated). For further information please see our insight here.

• Protection of employees who feel that they are in danger: the Employment Rights Act 1996 contains two relevant protections:

  • s.44 provides employees with a right to withdraw from and refuse to return to a workplace if they are in circumstances which they reasonably believe to be serious and imminent danger or who have raised health and safety issues to their employer and be protected from detriment; and

  • s.100 protects employees from dismissal (including constructive dismissal) in relation to health and safety cases, including where they reasonably believe that attending work would put them in serious and imminent danger or who bring circumstances to their employer's attention. Dismissals are automatically unfair with no cap on compensation.

• Whistleblowing protection: employees may blow the whistle in connection with proposed (or actual) workplace arrangements or risk assessments which they consider inadequate and be protected from detriment and dismissal.

Summary

The current crisis is evolving rapidly and with considerable uncertainty. Attitudes to returning to the workplace are shifting as we grapple with the tension between the need to protect health and protect businesses. This is made all the more complex by not knowing how long the crisis will continue, or having any way of measuring the wider harm restrictions are causing (aside from the direct harm to health and the economy).

This presents difficult legal challenges to a business that want or need to get people back to work and severe consequences for those who get it wrong.  In order to meet these challenges, we recommend the following:

• monitor and comply with ever-evolving government guidance: government guidance is regularly being updated in light of the developing pandemic. Complying with such guidance is the best starting point for ensuring compliance with statutory requirements, albeit, as noted above, it may not be sufficient;

• have a clear business plan: have a clear business plan setting which roles you need and when you need them to be carried out from the workplace. The less necessary a position, the harder it will be to justify taking any risk in relation to a return to the workplace;

• ask people if they want to come back to the workplace (for example by way of an online survey)  and to share any concerns anonymously: The more information you have about employee attitudes, their perspective of risks and their willingness to return to the workplace the more comprehensive any risk assessment can be;

• conduct a COVID-19 risk assessment and publish it: use all available information to carry out a robust assessment of the risks of returning to the workplace and do so in consultation with employees or employee representatives; and

• implement and continue to assess the safe place of work measures: the constantly changing situation requires constant review and updating of any risk-assessment.

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.