We have stayed at home to protect our NHS and now we move on to the next stage, whereby if we cannot work from home, we are being asked to go back into work. However, what steps do you as an employer need to take to make sure that your employees are sufficiently protected?
Business owners will be anxious to get moving as soon as possible to alleviate financial worries, however, all employers should now carefully consider the current Government advice for employers and businesses, and make sure all relevant safety methods are put in place before allowing employees to return to work.
All employers are now expected to have up to date risk assessments to consider the impact of Covid-19 on their individual businesses and employees, and employers with over 50 staff members are required to publish their Covid-19 risk assessments.
If you do find yourself the subject of an employer’s liability claim and you cannot produce an up to date Risk Assessment, you are seriously at risk of being found to have breached your duty to your employees.
This is an anxious time for everyone and employees want to feel safe at work or you may find that part of your workforce will refuse to return. You could be faced with arguments that you should not have re-opened or stayed open if you did not have the appropriate safety controls in place, for instance Personal Protective Equipment (PPE) such as gloves or masks.
One Size Fits All?
Each business setting is unique and there is no ‘one size fits all’ when it comes to risk assessing for a safe environment in the midst of a global pandemic. Whilst the nation is being told to use their common sense, it appears that this advice might also expand to employers alike. In the current situation, there is too much to lose to simply take a chance. Avoid standardised, box ticking risk assessments and take this opportunity to really assess where and how you can make changes in the workplace.
In accordance with the Management of Health and Safety at Work Regulations 1999, the minimum an employer is required to do is the following:
Identify what could cause injury or illness in your business (hazard);
Decide how likely it is that someone could be harmed and how seriously (risk), and
Take action to eliminate the hazard, or if this isn’t possible, control the risk.
It is safe to say that no employer is going to eliminate the risks posed by Covid-19, but as an employer you do need to show that you are doing what is appropriate in the current climate.
The case of Tracey Kennedy v Cordia (Services) LLP  UKSC6 highlights the importance of risk assessing for your employees when there has been a material change in risk. In the case of Kennedy, the change in risk related to weather, whereas the current change we all face worldwide is the transmission of Covid-19. It is likely that the Courts will have very little sympathy with an employer that has not sufficiently considered the impact of Covid-19 on their employees.
To adequately assess risk, you will need to consider:
What are the hazards?
Who might be harmed?
What controls are required?
Who will action the controls?
Is any training required?
Engage your Employees and Stakeholders
The Government has provided a lot of support and guidance on their website and you are able to look at risks involved in your particular business area, for instance retail. However, as mentioned above, a box-ticking exercise will not suffice. Engaging with employees is a good idea in that they are the ones that will be doing the jobs you are assessing. They may think of risks in the course of their employment that you might not have considered and it is important that you take the concerns of those working for you seriously.
What Information needs to be published?
Employers don’t need to publish the full contents of their risk assessment document. The guidance makes it clear that businesses with over 50 employees should publish the risks of their assessment online and the practical steps they are taking, rather than the full document itself. The Government is also encouraging all businesses, irrespective of the number of employees, to publish their risk assessment results in the same way.
It is important to think about WHY you need to publish this information and essentially it is about effectively communicating this information to your employees and customers.
In the event that you receive a claim against you, a solid risk assessment will stand you in good stead; of course we cannot say this will absolve you from liability, but it will show that you have carefully considered the safety of your employees, as long as you have followed through with the controls required.
The message – Stay Alert – Control the Virus – Save Lives – brings with it a warning to employers to STAY ALERT to changes in risk to your employees and customers alike. This is a fast moving situation and scientific and/or Government advice may change – with this change, so should your risk assessment.
Contact us for advice
Farleys are now providing a free legal advice clinic online, whereby individuals can book in a free appointment to discuss their issue confidentially with a solicitor, either via video call or telephone. If you have concerns relating to Covid-19 and safety at work please do not hesitate to get in touch. Call 0845 287 0939 or send your enquiry by email.
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