COVID-19: The end is nigh

Published 9 July 2021

With the Government’s recent announcement regarding the end of a vast majority of COVID-19 restrictions employers and businesses will be planning for a return to work and a full reopening. As of 19/07/21 many if not all of the restrictions imposed on businesses and individuals relating to COVID-19 will be lifted. As made clear by the Government this does not mean however that the risk of COVID-19 has gone away. There will still be infections, hospitalisations and unfortunately some deaths. How then are businesses, who owe a duty of care to employees and others, to manage the risks posed by COVID-19 whilst returning to work?

Employers’ Liability

Employers owe a common law duty of care to their employees to provide them with a safe place of work as well as general duties under the Health and Safety at Work Act 1974. In some situations employers may also owe duties to employees under the Control of Substances Hazardous to Health Regulations 2002 (COSHH) in relation to COVID-19.

In order to discharge their duty of care employers will need to show that they have assessed the risk of COVID-19 and in light of that risk assessment determined reasonable control measures to manage it. The risk assessment and the control measures will vary from industry to industry, from business to business and from workplace to workplace.

Employers have a duty to keep abreast of the latest developments as regards any risks posed. The 1968 decision in Stokes v GKN remains the guiding light when considering the need to keep abreast with developing knowledge and the judgment of Swanwick J bears repeating

“the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised or general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to make more that the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury and the potential consequences if it does; he must balance against this the probably effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

In short, employers need to make themselves aware of the risks and then consider the reasonable ways of minimising that risk.

It is important to note that just because the COVID Regulations will no longer be effective does not mean that employers can dispense with all control measures. There is a known risk which must be effectively managed but there is now more flexibility for employers to develop and adapt control measures specific for their needs. It would be brave employer indeed who dispensed with all restrictions now without having first considered the risk.

Office Work

For many currently working from home there will now be the option to return to the office whether on a full time or flexible basis. Employers will need to consider whether any control measures in place for office working remain appropriate i.e. increased space between colleagues, reduced hot-desking, and social distancing in communal areas.

Retail & Leisure

Many retailers and leisure facilities have remained open and trading, to a greater or lesser extent, during the current restrictions. As the COVID-19 Regulations are withdrawn consideration will need to be given to what, if any, control measures remain in place. For example should employees continue to wear face masks? Should the Perspex screens remain in place? Should hand sanitiser continue to be provided? This will involve an assessment of the specific risk for the specific shop, restaurant or gym etc.

Retailers will need to decide whether to insist customers wear a face covering following 19/07/21 when the advice from the UK Government will be that wearing a face covering will be a matter of personal responsibility. Companies are responsible for assessing health and safety risks and a requirement by a retailer for a customer to wear a face covering will likely be considered reasonable. Retailers, and indeed other companies, will need to ensure that they do not discriminate against a customer who has a relevant protected characteristic under the Equality Act 2010. Any person who is currently exempt from wearing a face covering in accordance with current Government guidance should not be refused entry to a store if unable to wear a face covering once restrictions are lifted. If a person with a relevant protected characteristic is refused entry to a retail premises for refusing to wear a face covering then they would be able to bring a claim for discrimination.

Unions have suggested that face coverings should continue to be mandatory for shoppers to protect staff. It remains to be seen what action will be taken by retailers, which will likely vary from company to company.

Night clubs will also need to consider any potential risks and implement control measures before they reopen for the first time since March 2020.

Manufacturing

As in the retail and leisure industry many manufacturers have remained operational during the pandemic albeit in many cases at reduced capacity. Employers will need to balance the need for productivity against the risks of COVID-19 and consider whether the control measures in place to prevent the risk of infection ought to remain in place or whether new control measures or no control measures are required. For example shift bubbles may no longer be required but distancing between employees working on a production line, if practicable, may still be retained.

Construction

Many construction sites have remained active with control measures in place during the pandemic. Duty holders, particularly those in control of construction sites will now need to consider what if any of the measures should continue and how work can safely be carried out. The specific project and task will need to be considered and what would be the most appropriate way of managing the risk both from the task and from COVID-19.

Organisations will still need to ensure that there are effective procedures in place to stop any workers required to self-isolate from coming into work.

Duty holders may still consider that it is best practice to carry on adopting some of the measures to help reduce unnecessary contact in the workplace so as to minimise the risk of workers passing on coronavirus to others and thereby avoid any major disruption to the progress of a project.

This may include encouraging social distancing, the use of outside space for meetings where practical and ensuring the supply of fresh air to indoor spaces.

Some organisations may also decide to continue adopting the current guidance from The Construction Leadership Council on wearing face coverings on site, namely the recommendation that masks are worn where workers on site are not required to wear Respiratory Protective Equipment (RPE) and their workplace meets all of the following criteria: (i) an enclosed space; (ii) where social distancing isn’t always possible and (iii) where they come into contact with others they do not normally meet.

Transport & Logistics

Employers will need to consider whether the present control measures remain in place to protect staff as passenger numbers increase. It remains to be seen whether the Government will continue to require the use of masks on public transport. Train operators have publicised a plan to support passengers who wear face coverings. In any event transport operators will need to be mindful of potential discrimination claims in respect of those not wearing masks, who may be exempt from doing so.

Health & Social Care

Health and social care providers need to consider not only the risks to their staff but also the vulnerable status of their service users. Given the prevalence of deaths amongst older people, often with other medical conditions, the need to control the potential risk of infection is greater. As made clear in Stokes one has to consider not only the likelihood of an injury occurring but also the severity of the injury if it does.

When considering what restrictions might remain in place service providers will need to consider the access rights of service users and their families and any risk assessment will need to balance those rights against the risks posed.

Careful consideration will also need to be given to the need for staff to isolate if they have tested positive for COVID-19 or if they have been in close contact with someone who has tested positive. Central guidance will be issued on the degree to which those vaccinated need to self-isolate and that guidance needs to be very clearly articulated in policies and procedures and evidence ought to be obtained that employees have read and understood them. We accept the guidance coming centrally has been frequent and changed often which can be confusing for employees and employers in the care sector have a role to support staff through that uncertainty.

Service providers will also need to consider the impact of vaccinations on care staff. Vaccination alone may not prevent transmission of COVID-19 and the duration of immunity offered is potentially variable from individual to individual, as such the vaccination should not be relied on as a singular control measure. Employers should ensure that COVID-secure measures (other than vaccination) are in place to protect their employees and service users and should undertake individual risk assessments in relation to employees and service users at greater risk from COVID-19. For more information on compulsory vaccinations in the care sector please see COVID-19 vaccinations to become mandatory for care staff prepared by Joanne Bell and Udara Ransignhe.

We are hopeful the sound take up of vaccinations amongst those receiving care will mean deaths are kept to a much lower level than 2020 or the beginning of this year. Causation factors will clearly be relevant as we enter Autumn/ Winter 2021 and the potential increase in flu outbreaks

Summary

Regardless of the industry or the employee a revised risk assessment, as required by the Management of Health and Safety at Work Regulations 1999, will be required and consideration given to what is are reasonable and proportionate control measures to reduce the potential risk of COVID-19 infection.

Employers are unlikely to be criticised for maintaining the same measures in place now if they wish notwithstanding the absence of a requirement to do so. However, if control measures and precautions are changed or relaxed a clear explanation as to the reasons why will be critical to claims defensibility. As we have said many times before during the pandemic the reasons for not doing something are often as important as the reasons for taking positive action.