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Published 2 March 2022
The Government has announced the end of all existing COVID-19 Restrictions in England & Wales. There is no longer any requirement for individuals testing positive for COVID-19 to self-isolate, no requirement for regular testing and no formal restrictions on workplace or social activities. The provision of free lateral flow tests will cease in a majority of instances from 1 April 2022.
Whilst the formal requirements to manage COVID-19 may have ended that does not mean that the risk of COVID-19 has gone away but employers and employees now have greater control as to how that risk should be managed in respect of their individual business or operation.
Employers still are under a duty of care to provide employees with a reasonably safe place of work. Businesses also have a duty to take reasonable steps to ensure that visitors to their premises are reasonably safe. The ending of COVID-19 restrictions does not vitiate these statements of the common law duty of care and in certain circumstances additional duties will be owed under the Control of Substances Hazardous to Health Regulations 2002 (COSHH).
With the easing of some restrictions in the summer of 2021 we drew attention to the case of Stokes v GKN which sets out the guiding principle that employers need to keep up to date with developing knowledge in a particular area. The principle in Stokes remains good.
There remains a risk from COVID-19 albeit, thankfully, a much reduced one. Employers however must still consider the risk and what steps ought to be taken to reduce that risk to the lowest practicable level. When considering the risk the decision in Stokes is again useful in providing a summary of the position:
“[An employer] 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.
The Risk Assessment
Each business and place of work is different and the risk assessment should reflect this. What will work for one business or part or one business may well be different to what works for another.
The risk assessment for COVID-19 should consider
The risk assessment ought to consider whether any of the following are or remain suitable control measures to reduce the risk of COVID-19 infection
None of this is new to employers who will be familiar with the COVID Secure guidance issued by the Government. In short there is far more flexibility than previously for businesses to operate but this does not mean that all COVID-19 control measures can be dispensed with without first assessing the risk. Employers and businesses need to carefully consider and balance the risk of COVID-19 infection to staff and visitors whilst aiming to return to as near to normal as possible.
In some circumstances, particularly Health and Social Care, it is more likely that some restrictions will remain in place whereas in other sectors such as Construction it is likely that a majority of the restrictions will no longer be considered as necessary.
The risk assessment, once completed, ought to be shared with employees and regular reviews should take place to ensure that the control measures in place remain appropriate.
The risk from COVID-19 has been managed and has reduced but has not disappeared entirely. The ending of Government restrictions does not absolve businesses of their duty of care to employees and visitors. A risk assessment for COVID-19 still needs to be completed and following completion reasonable and proportionate control measures may be required to ensure that employers comply duty of care to staff and visitors
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