Coronavirus: Returning to work - By Daniel Ferguson 16 August 2021 - UK Parliament
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By Daniel Ferguson
16 August 2021
Coronavirus: Returning to work
Summary
1 The lockdown
2 Health and safety at work
3 Refusing to go to the workplace
4 Flexible working
5 Whistleblowing
commonslibrary.parliament.ukNumber CBP 8916 Coronavirus: Returning to work
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2 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work Contents 1 The lockdown 8 1.1 Who is allowed to go to work? 8 1.2 Workers who can work from home 9 1.3 Workers who have to self-isolate 10 1.4 Workers who have to quarantine 11 1.5 Workers who are vulnerable to COVID-19 12 1.6 Workers whose workplaces are closed 12 1.7 Financial support for workers 13 1.8 Future relaxations of lockdown rules 14 2 Health and safety at work 16 2.1 Legal framework 16 2.2 Regulations relevant to Covid-19 19 2.3 Additional Covid-19 legislation 23 2.4 Government guidance on working safely 24 2.5 Workplace testing 28 2.6 Vaccinations and employment law 29 2.7 Devolution 31 3 Refusing to go to the workplace 33 3.1 Refusing to go to work for health and safety 33 3.2 Discrimination 37 3.3 Employees with caring responsibilities 38 4 Flexible working 40 4.1 Right to request flexible working 40 3 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work 4.2 Hybrid working 41 5 Whistleblowing 43 4 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work Summary This is a fast-moving area and the paper should be read as correct at the time of publication (12 August 2021). In late March 2020, the UK Government and devolved administrations made legislation to impose lockdowns in response to the Covid-19 pandemic. People were prohibited from going to work unless they could not work from home. At times this rule has been set out in legislation and has been mandatory while at other times it has been set out in guidance and has been advisory. Lifting lockdown restrictions On 19 July 2021, the UK Government moved England to Step 4 and lifted most coronavirus-related legislation. The guidance on working from home was also lifted, although the Government says employers should ensure a “gradual” return to the workplace over the summer. On 7 August, the Welsh Government moved Wales into Alert Level 0 and lifted most coronavirus-related legislation. However, the Government says working from home will likely be a “reasonable measure” employers are legally required to take to reduce the risk of the spread of Covid-19. On 9 August, the Scottish Government moved Scotland into ‘beyond level 0’ and lifted most coronavirus-related legislation. The guidance on working from home was also lifted, although Government says working from home is an “important mitigation” that will reduce the risk of the spread of Covid-19. In Northern Ireland, lockdown legislation remains in force and the Executive continues to advise people to work from home where possible. Health and safety Employers have to follow a range of health and safety legislation. The Health and Safety Executive publishes approved codes of practice and guidance on health and safety law. In summary, employers have to: 1. Undertake a risk assessment; 2. Set up safe systems of work, informed by the risk assessment; 3. Implement the safe systems of work; and 4. Keep the systems of work under review. The UK Government’s new guidance on working safely during Covid-19 sets out steps businesses can take to ensure their workplace is safe as restrictions are lifted. The guidance lists risk assessments, ventilation and cleaning as the key measures businesses should be taking. 5 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work The guidance does not have any special legal status and does not replace an employer’s existing legal obligations. It is for employers to carry out a proper risk assessment and identify the steps they need to take to protect their staff. There is equivalent guidance in Scotland, Wales and Northern Ireland. Vaccinations The UK Government has created the NHS COVID Pass to allow people to show their vaccination or other Covid status (negative test or natural immunity). The Government has not legislated to require businesses to make the Pass a condition of entry. However, the Government has suggested that nightclubs and other large venues may be legally required to check the Pass from the end of September. The Government has also legislated to make vaccination a condition for working in a care home from 11 November 2021. If an employer decides to ask their staff for proof of vaccination, they must comply with existing legal obligations under employment law, equality law, data protection law and human rights law. An employer that dismisses an employee who refuses to be vaccinated could face a claim for unfair dismissal or indirect discrimination. Such cases will always turn on the facts. Refusing to go to work All workers have an obligation to obey lawful and reasonable instructions given by their employer. However, employees who refuse to attend the workplace because they reasonably believe that there is a serious and imminent danger have certain protections under employment rights legislation. The protections also apply if an employee takes appropriate steps to protect themselves or others from danger. Whether an employee has a reasonable belief will always depend on the facts of the case. There are now a number of Employment Tribunal judgments in cases concerning employees who raised concerns about Covid-19. In many of the cases employees have not had much difficulty establishing a reasonable belief of serious and imminent danger. However, there are indications that a general fear of Covid-19 may not be enough, especially if the employer was following the Government’s working safely guidance. Flexible and hybrid working Employees are no longer legally required to work from home. However, many employers are considering adopting new ‘hybrid working’ arrangements that allow employees to split their working time between home and the office. This will usually need to be agreed between the employer and its staff. Employees who have worked for their employer for 26 weeks can make a request for flexible working. Employers are required to deal with the request in a reasonable manner. Requests can be refused for a number of reasons listed in the legislation, including cost or impact on quality or performance. 6 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work Whistleblowing Throughout the pandemic a number of workers have raised concerns about the safety of their workplace or public health more widely. Employment law offers a range of protections to whistleblowers who make ‘protected disclosures.’ However, there are detailed rules on what sorts of disclosures qualify for protection. The disclosure must relate to a particular subject matter and must be made to one of a number of groups of people listed in legislation. This includes the Health and Safety Executive, local authorities and MPs. There are additional requirements if a disclosure is made to someone not listed in the legislation, like the press or on social media. 7 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work
1 The lockdown
Throughout the Covid-19 pandemic, the UK Government and devolved
administrations have each had rules concerning who can and cannot go to
the workplace. The rules have been set out in lockdown laws and in guidance.
By April 2021, all four governments had lifted the legal requirement to work
from home and replaced it with guidance. The governments have since lifted
many remaining legal restrictions and published new guidance.
On 19 July 2021, the UK Government moved England into Step 4, lifting most of
the legal restrictions and the guidance on working from home.
On 9 August 2021, the Scottish Government moved Scotland beyond level 0,
lifting most legal restrictions and the guidance on working from home.
On 7 August 2021, the Welsh Government moved Wales to alert level 0, lifting
most of the legal restrictions. People are still advised to work from home.
In Northern Ireland, lockdown legislation remains in place and people are
advised to work from home.
An overview of remaining lockdown laws can be found in the Library Briefing,
Coronavirus: the lockdown laws (CBP-8875).
1.1 Who is allowed to go to work?
In certain circumstances, legislation specifically prohibits people from
attending the workplace. In other cases, public health guidance says that
people should not attend the workplace. Some of the groups of people who
might be required or advised not to go to work include:
• People who can work from home;
• People who are self-isolating or quarantining; and
• People who are extremely vulnerable to COVID-19.
The UK, Scottish, Welsh and Northern Ireland governments all have guidance
for workplaces which explain who is allowed to go to work.
It is important to note that public health legislation (the lockdown laws) and
health and safety legislation are distinct. A person may be permitted to go to
work under the lockdown laws but it might still be a breach of health and
safety law, or equality law, to require that person to attend the workplace.
8 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
For example, in Scotland there is no specific legal obligation to self-isolate for
people who have tested positive for COVID-19. However, the public health
guidance says they should self-isolate for 10 days. It could still be a breach of
health and safety legislation for an employer to require or allow a self-
isolating worker to attend the workplace during that 10-day period, even if it
does not breach lockdown legislation.
Employees are also protected from detriments or being dismissed if they
refuse to go to work because they reasonably believe there is a serious and
imminent danger to themselves or to others (see Section 3 below).
Workers who can go to work (16 August 2021)
Northern
Type of worker England Scotland Wales
Ireland
Not able to work from home
Able to work from home
In self-isolation/quarantine
Clinically extremely
vulnerable (shielding)
Can go to work if workplace is following Covid-secure guidelines
Can go to work but advised to work from home if possible
Offence to go to work / should not go to work for health and safety
1.2 Workers who can work from home
Workers who are able to work from home may be prohibited from going to
work by legislation or advised not to by guidance.
The whole of England is in Step 4. The majority of lockdown legislation has
been revoked. The guidance on working from home has also been lifted.
However, the UK Government guidance says it expects and recommends that
people return to work gradually over the summer.
The whole of Scotland has moved beyond level 0. People are no longer legally
prohibited from leaving their home. The Scottish Government guidance says
people can go to work but that working from home is an “important
mitigation” for controlling the risk of transmission of Covid-19.
The whole of Wales is in alert level 0. People are no longer legally prohibited
from leaving their home. However, businesses are legally required to take
“reasonable measures” to reduce the risk of exposure to Covid-19 in the
workplace. The Welsh Government guidance suggests reasonable measures
includes working from home where possible.
9 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
In Northern Ireland people are no longer legally prohibited from leaving their
home. The Northern Ireland Executive guidance says people must work from
home if they can.
1.3 Workers who have to self-isolate
Workers may be required to self-isolate by lockdown legislation or advised to
do so by public health guidance.
In England, a person is legally required to self-isolate for 10 days if they are
told by NHS Test & Trace that they have tested positive for Covid-19 or that
they have been in close contact with a person who has tested positive for
Covid-19. The legal obligation to self-isolate does not apply if a person has
been told to self-isolate via the NHS app. 1 If a person who tests positive is
instructed to take a confirmatory test and that test is negative, they can stop
self-isolating. 2 The guidance on self-isolation says anyone who tests positive
through a rapid lateral flow (LFD) test should take a confirmatory PCR test.
A person who is self-isolating must remain in their home, or the home of a
friend or family member, for 10 days. There are only limited circumstances in
which a person can leave their home. It is an offence for a person to leave
self-isolation without a reasonable excuse. It is an also offence for employers
to allow a self-isolating worker to go to work without a reasonable excuse. 3
From 16 August, a person who is notified as a close contact does not have to
self-isolate if they have been fully vaccinated in the UK, they are under the
age of 18, they took part in a clinical trial or they cannot be vaccinated for
clinical reasons. 4 The guidance on self-isolation says they should take a PCR
test as soon as possible, although there is no leal obligation to do so.
On 19 July 2021, the UK Government announced that critical workers and
frontline health and care workers will be allowed to leave self-isolation in
exceptional circumstances. Detailed rules were set out in the guidance on
NHS Test and Trace in the workplace. The scheme ended on 16 August 2021.
On 24 July, the UK Government announced that frontline emergency services
and transport workers will be allowed to join the daily contact testing study
and will not have to self-isolate. The legal basis for this scheme is unclear,
although it could be argued that it is an approved testing study.5
Further information on self-isolation can be found in the Library Briefing,
Coronavirus: Self-isolation and Test and Trace Support Payments (CBP-9015).
1
Reg. 2A-2B, Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020
2
Ibid., Reg. 2C
3
Ibid., Regs. 2 and 11
4
Ibid., Reg. 2B(6)
5
Ibid., Reg. 2D
10 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
In Scotland, there is no specific legal obligation to self-isolate. However,
Scottish Government guidance on self-isolation says anyone who shows
symptoms of Covid-19 should isolate immediately, along with those in their
household, and take a test. If they test positive, they and any close contacts
must self-isolate for 10 days. As in England, there are exemptions for fully
vaccinated critical workers who can leave self-isolation to go to work.
From 9 August 2021, close contacts who are fully vaccinated or aged under 18
can stop self-isolating if they take a PCR test and the result is negative.
While there is no specific legal obligation prohibiting a self-isolating worker
from attending the workplace, requiring or permitting them to go to work
could be a breach of health and safety law.
In Wales, there is a legal obligation to self-isolate. 6 As in England, a person is
required to self-isolate for 10 days if they are notified that they have tested
positive for COVID-19 or that they were in close contact with a person who has
tested positive. From 7 August 2021, close contacts who are fully vaccinated
or aged under 18 no longer have to self-isolate. The Welsh Government
guidance provides a detailed overview of the rules.
In Northern Ireland, there is no specific legal obligation to self-isolate. The
Northern Ireland Executive guidance says that a person must self-isolate for
10 days if they show symptoms of COVID-19, they live with a symptomatic
person or they are a close contact. From 16 August, close contacts who are
fully vaccinated will not have to self-isolate. Close contacts aged 5 to 17 can
stop self-isolating if they take a PCR test and the result is negative.
1.4 Workers who have to quarantine
In all four nations there are strict rules on entering the UK form outside of the
Common Travel Area. 7 People arriving from amber and red list countries are
required to quarantine (self-isolate) for 10 days at home or in a quarantine
hotel. It is an offence for a person to leave their place of quarantine except in
certain limited circumstances. People cannot leave quarantine to go to work.
People who were fully vaccinated in the UK, EU or USA are not required to
quarantine if they arrive in the UK from an amber list country. People arriving
for certain work purposes are also exempt from quarantine.
The UK, Scottish, Welsh and Northern Ireland governments have produced
guidance on travel and quarantine.
For further information on international travel rules see the Library Briefing,
Coronavirus: International Travel FAQs for England (CBP-9023).
6
Regs. 5-13, Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020
7
Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations
2021; See also SSI 2020/169 (Scotland); WSI 2020/574 (Wales); NISR 2021/99 (Northern Ireland)
11 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
1.5 Workers who are vulnerable to COVID-19
The UK Government and devolved administrations classify some people as
clinically extremely vulnerable to COVID-19. This includes people with certain
health conditions and people who are told they are vulnerable by their GP.
In England, people who are clinically extremely vulnerable are no longer
advised to shield. However, the guidance on shielding says that people who
are extremely vulnerable may wish to be cautious and limit the number of
people they meet. The guidance emphasises that employers still have a legal
responsibility to protect the health and safety of their workers. The Health
and Safety Executive’s (HSE) guidance on protecting vulnerable workers says
employers do not need to implement specific controls for vulnerable workers
but should ensure that measures identified in the risk assessment are applied
strictly. The guidance notes that employers have specific legal obligations
towards new and expectant mothers who must be suspended on full pay if
their work cannot be carried out safely.8
In Scotland, the guidance on shielding says it is safe for people who are
clinically extremely vulnerable to go to work if they are unable to work from
home. The guidance says employers have an obligation to undertake a risk
assessment and identify measures to reduce the risk of the transmission of
coronavirus in the workplace.
In Wales, the guidance on shielding says people who are clinically extremely
vulnerable should continue to work from home where possible. It also notes
the employer’s duty to carry out a Covid-19 risk assessment.
In Northern Ireland, the guidance on shielding says people who are clinically
extremely vulnerable should continue to work from home where possible. It
notes that employers have a duty of care towards their employees.
1.6 Workers whose workplaces are closed
Lockdown legislation has required businesses in certain sectors to close their
premises. The list of businesses required to close has varied over time.
In England, Scotland and Wales, there are no longer any businesses that are
required to close. As such, all businesses can re-open and staff can attend
the workplace.
In Northern Ireland, a small number of businesses are still legally required to
close, including nightclubs. The Northern Ireland Executive has published
detailed guidance on business closures.
8
Section 66-68, Employment Rights Act 1996
12 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
1.7 Financial support for workers
A key question for many workers will be what pay or financial support they are
entitled to if they are unable to attend the workplace.
Wages
A worker’s entitlement to wages is governed, principally, by the terms of their
employment contract. As a general rule, workers are entitled to be paid if
they are ‘ready, able and willing’ to work. 9 There is some debate over whether
a worker who refuses to attend the workplace for health and safety reasons is
entitled to pay.
The Court of Appeal has held that if a worker is unable to work because of an
unavoidable impediment imposed by a third party, it may be unlawful for the
employer to deduct pay unless they have a specific contractual right to do
so. 10 Workers who are unexpectedly required to quarantine, for example,
might be able to argue that they are still entitled to be paid. However, this
will always depend on the facts. 11
If a worker is unable to attend the workplace, they may be able to work from
home and be paid as normal. As a general rule, workers do not have a right
to work from home, although some will have a right to request flexible
working. 12 The Advisory, Conciliation and Arbitration Service (Acas) suggest
that employers should talk to employees and should be practical, flexible and
sensitive to the needs of both parties.
Furlough
The Coronavirus Job Retention Scheme (CJRS) is the UK Government’s main
income support scheme. It is set to end on 30 September 2021.
Under the CJRS, eligible employees can be ‘furloughed’. This means
employers can ask them to cease working or work reduced hours and claim
support from HMRC to cover any ‘usual hours’ they do not work.
From 1 August 2021, HMRC will provide a grant to cover 60% of an employee’s
wages for usual hours not worked (up to £1,875 per month). Employers must
cover a further 20% of the employee’s wages.
From 1 May 2021, employees can be furloughed if they were employed on 2
March 2021 on a PAYE payroll notified to HMRC on or before that date.
9
Recognised as an ‘implied term’ of the contract in Beveridge v KLM [2000] IRLR 765
10
North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387, para. 52
11
See Coronavirus: International travel FAQs for England, Commons Library Briefing Paper CBP-9203,
3 August 2021, Section 4.1
12
See Flexible Working, Commons Library Briefing Paper SN-1086, 3 October 2018
13 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
The CJRS only covers those who are ‘employees’ for tax purposes. As such,
many workers in the gig economy cannot be furloughed.
The formal rules of the CJRS are set out in a Treasury Direction and the
Government has also published a number of guidance documents.
Further information on the CJRS can be found in the Library Briefing, FAQs:
Coronavirus Job Retention Scheme (CBP-8880).
Statutory Sick Pay
Statutory Sick Pay (SSP) is available to employees who are ‘incapable for
work’ for four or more consecutive days. The employee must earn at least
£120 per week on average.
In some circumstances employees are ‘deemed incapable for work’. Anyone
who is self-isolating in line with official guidance and anyone who has been
notified to shield is deemed incapable for work. 13
Employees can be furloughed instead of being put on SSP, which is paid at the
rate of £96.35 per week. Employers can reclaim two weeks’ worth of SSP from
the Statutory Sick Pay Rebate Scheme.
Test and Trace Support Payments
Where a person who is in receipt of certain benefit payments is required to
self-isolate, they may be entitled to Test and Trace Support Payments, or a
similar payment under devolved schemes.
Further detail on these payments can be found in the Library Briefing,
Coronavirus: Self-isolation and Test and Trace Support Payments (CBP-9015).
1.8 Future relaxations of lockdown rules
In England, most lockdown legislation has been revoked. The next big change
is due on 16 August 2021 when people who are notified as close contacts will
not have to self-isolate if they have been fully vaccinated, are under the age
of 18 or cannot be vaccinated for clinical reasons. 14
Scotland moved to ‘beyond level 0’ on 9 August 2021. Most legal restrictions
were lifted as well as the guidance on working from home. Some restrictions,
such as the legal requirement to wear a face covering, are still in place. The
First Minister said that these rules will be kept under review but will likely be
in place for some time. The new legislation, which contains the face covering
requirement, is set to expire on 28 February 2022.
13
Schedules 1-2, Statutory Sick Pay (General) Regulations 1982
14
Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) (Amendment) Regulations
2021
14 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work Wales moved to alert level 0 on 7 August 2021. Most legal restrictions were lifted. Some restrictions remain in place, including the legal requirement to wear face coverings and the duty of businesses to take reasonable measures to reduce the risk of transmission of Covid-19. The Welsh laws are reviewed every three weeks. In Northern Ireland, a number of rules were relaxed on 12 August 2021, including the re-opening of conference and exhibition halls and the removal of restrictions on outdoor gatherings. The guidance on working from home still remains in place. 15 Commons Library Research Briefing, 16 August 2021
Coronavirus: Returning to work
2 Health and safety at work
2.1 Legal framework
The UK has a detailed body of health and safety law. It is made up of common
law duties, primary and secondary legislation and retained EU law, as well as
numerous codes of practice and pieces of guidance.
This section sets out some of the key principles of health and safety law and
highlights the most relevant pieces of legislation in the context of COVID-19.
Sources of law
The key piece of legislation in the UK is the Health and Safety at Work etc. Act
1974 (HSWA). The HSWA is supplemented by a large number of pieces of
secondary legislation.
In many areas of health and safety law, UK legislation gave effect to EU law.
The key piece of EU legislation is the Framework Directive (Directive
89/391/EEC) which is also supplemented more detailed Directives.
The Health and Safety Executive (HSE) issues Approved Codes of Practice
(ACOPs) as well as health and safety guidance. ACOPs have a special legal
status. If in criminal proceedings it is shown that an employer did not follow a
relevant ACOP, the employer must prove it complied with its health and safety
obligations. 15 HSE guidance does not have legal force but the HSE does note
that employers who follow the guidance will “normally be doing enough to
comply with the law.” 16
Guidance on working safely during COVID-19
The Department for Business, Energy and Industrial Strategy (BEIS) has
published guidance on working safely during Covid-19. Prior to 19 July 2021,
there were guides for 14 sectors. As England moved into Step 4, the guides
were re-published. There are now guides for six sectors.
As with HSE guidance, the BEIS guidance has no specific legal status. Rather,
it is guidance for employers on how they can fulfil existing legal obligations in
the context of Covid-19.
This status of the guidance is discussed in more detail in Section 2.4 below.
15
s. 17, Health and Safety at Work etc. Act 1974 (‘HSWA’)
16
HSE, Legal status of HSE guidance and ACOPs
16 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Employer’s general obligations
An employer’s general health and safety obligations are set out in section 2 of
the HSWA. Employers must “so far as is reasonably practicable” provide and
maintain safe places of work, safe systems of work and adequate facilities for
welfare. In addition, employers must provide employees with sufficient
information and training.
Employers only need to take steps that are reasonably practicable. HSE
guidance on risk assessment explains:
Generally, you need to do everything ‘reasonably practicable’ to
protect people from harm. This means balancing the level of risk
against the measures needed to control the real risk in terms of
money, time or trouble. However, you do not need to take action if it
would be grossly disproportionate to the level of risk.
Barristers at Cloisters chambers summarised the employer’s obligations in
the following terms:
5. Assessing risks;
6. Setting up a safe system of work;
7. Implementing these system;
8. Reviewing these system. 17
Risk assessment
A central feature of an employer’s obligation is risk assessment. This is a
specific obligation under many pieces of secondary legislation.
The Supreme Court, citing Smith LJ in an earlier Court of Appeal judgment,
explained the importance of these assessments:
Judicial decisions had tended to focus on the breach of duty which
led directly to the injury. But to focus on the adequacy of the
precautions actually taken without first considering the adequacy of
the risk assessment was, she suggested, putting the cart before the
horse. Risk assessments were meant to be an exercise by which the
employer examined and evaluated all the risks entailed in his
operations and took steps to remove or minimise those risks. They
should, she said, be a blueprint for action. She added at para 59,
cited by the Lord Ordinary in the present case, that the most logical
way to approach a question as to the adequacy of the precautions
taken by an employer was through a consideration of the suitability
and sufficiency of the risk assessment. We respectfully agree.18
17
Cloisters – Employment, Tenth edition released of Cloisters Toolkit: Returning to work in the time of
Coronavirus, Cloisters, 5 March 2021
18
Kennedy v Cordia LLP [2016] UKSC 6 at para. 89
17 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
HSE has produced basic guidance on risk assessment.
As noted, employers must also implement all the steps that it finds are
necessary and reasonably practicable in light of its risk assessment.
Health and safety policies
Employers with five or more employees are obliged to prepare and, when
appropriate, revise a written health and safety policy. 19
HSE guidance on preparing health and safety policies says it should cover:
1. Statement of intent: an employer’s general policy on health and safety in
the workplace;
2. Responsibility: listing the names and positions of persons responsible for
health and safety in the workplace;
3. Arrangements: listing practical steps that are being taken to ensure
health and safety policies are satisfied.
An employer must bring the health and safety policy to the notice of all its
employees.
Consultation of safety representatives
Employers have a duty to consult safety representatives. There are separate
rules depending on whether there is a recognised trade union that represents
employees.20
Employers must consult representatives about the introduction of any
measures that could substantially affect the health and safety of employees
and while undertaking any risk assessments.
HSE has guidance and an ACOP on consulting safety representatives.
Consultation in the context of Covid-19 is discussed further below.
Employee’s obligations
Health and safety law also applies to employees. Employees are required to
take reasonable care of their health and safety and that of others. In
particular, employees must cooperate with employers to enable them to fulfil
their health and safety obligations. 21
19
Reg. 2, The Employers' Health and Safety Policy Statements (Exception) Regulations 1975
20
Unionised workplaces: The Safety Representatives and Safety Committees Regulations 1977; or non-
unionised workplaces: The Health and Safety (Consultation with Employees) Regulations 1996
21
Section 7, Health and Safety at Work etc. Act 1974 (‘HSWA’)
18 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Criminal and civil liability
It is a criminal offence to fail to comply with health and safety law. On
conviction on indictment an employer could face an unlimited fine. 22
An employer’s failure to comply with health and safety legislation does not
give rise to civil liability. 23 A worker seeking to bring a claim against an
employer would need to bring a personal injury claim and prove that the
employer acted negligently.
The HSE provides an overview of criminal and civil liability on its website.
Enforcement of health and safety law
The enforcement of health and safety law is shared between the HSE and
local authorities. The HSE covers sectors including factories and building
sites. Local authorities cover sectors such as retail, offices and the hospitality
industry. The HSE website has a list setting out which body is the appropriate
enforcing authority.
Inspectors have a range of powers provided by the HSWA. This includes the
power to enter and inspect premises and the power to take samples.
Inspectors can issue ‘improvement and prohibition notices’ if they believe that
an employer is failing to comply with its health and safety obligations. 24 In
addition, if a safety inspector finds that an employer has failed to comply with
its legal obligations, the HSE can charge the employer a fee for intervention. 25
HSE’s Enforcement Policy Statement and the National Local Authority
Enforcement Code set out the HSE and LAs approaches to regulation.
2.2 Regulations relevant to Covid-19
There are a number of key health and safety regulations that may be relevant
in the context of Covid-19. They include
• The Management of Health and Safety at Work Regulations 1999
• The Workplaces (Health, Safety and Welfare) Regulations 1992
• The Control of Substances Hazardous to Health Regulations 2002
• The Personal Protective Equipment at Work Regulations 1992
• The Safety Representatives and Safety Committees Regulations 1977
22
Section 33, HSWA
23
Section 47(2) and 47(2A), HSWA
24
Sections 20 to 22, HSWA
25
Health and Safety (Fees) Regulations 2012
19 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Barristers at Cloisters chambers have published a detailed guide to returning
to work that, among other things, considers the obligations employers have
under these regulations in the context of Covid-19.
Management of health and safety at work
The Management of Health and Safety at Work Regulations 1999 (MHSW
Regulations) set out general rules for the arrangements employers must put
in place to manage health and safety risks in the workplace.
Key obligations under the Regulations include:
• Undertaking risk assessments;
• Implementing preventative and protective measures;
• Carrying out health surveillance;
• Appointing employees to assist in applying safe systems of work;
• Providing employees information about any the risk assessment
preventative measures being taken.
Schedule 1 to the Regulations sets out a hierarchy of preventative and
protective measures that can be taken, starting with avoiding a risk entirely
and moving down through other measures such as seeking out less-
dangerous options or prioritising collective protective measures.
The Regulations also require specific risk assessments to be made for new
and expectant mothers. If there are risks cannot be avoided through
alterations, new and expectant mothers must be offered a suitable
alternative job or, failing that, be suspended on full pay. 26
The HSE has produced detailed guidance on the MHSW Regulations.
Workplace health, safety and welfare
The Workplace (Health, Safety and Welfare) Regulations 1992 (WHSW
Regulations) are concerned with the physical aspects of the workplace.
The key obligations under the Regulations include:
• Maintaining and cleaning the workplace;
• Ventilating the workplace;
• Providing rooms that are sufficiently big to work in safely;
• Providing suitable workstations and seating;
• Enabling safe circulation of people within the workplace;
• Providing suitable sanitary and washing facilities.
The HSE has an ACOP and guidance on the WHSW Regulations.
26
See Maternity Action, Health and safety during pregnancy and on return to work, March 2019
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Control of hazardous substances
The Control of Substances Hazardous to Health Regulations 2002 (COSHH
Regulations) concern the spread of hazardous substances, including bacteria
and viruses, within the workplace.
The key obligations under the Regulations include:
• Undertaking risk assessments;
• Preventing or controlling exposure to hazardous substances;
• Monitoring exposure in the workplace.
HSE guidance on pandemic flus explains that the COSHH Regulations apply to
workers who are exposed to a virus as a direct consequence of their work
(e.g. healthcare workers) but not in cases where a virus is in general
circulation and also happens to be in the workplace. The guide lists some
general steps that employers can take in cases of pandemic flus, in particular
requiring symptomatic workers to stay at home.
The Regulations set out a hierarchy of measures that can be taken to control
transmission of hazardous substances. The HSE ACOP explains:
There is a broad hierarchy of control options available, based on
inherent reliability and likely effectiveness. COSHH regulation 7 refers
to many of these options. They include:
• elimination of the hazardous substance;
• modification of the substance, process and/or workplace;
• applying controls to the process, such as enclosures,
splashguards and LEV;
• working in ways that minimise exposure, such as using a safe
working distance to avoid skin exposure;
• equipment or devices worn by exposed individuals. 27
If exposure to the hazardous substance cannot be adequately controlled,
employers must provide employees with adequate PPE. 28
Personal protective equipment (PPE)
The Personal Protective Equipment at Work Regulations 1992 (PPE
Regulations) set out rules about the provision of PPE.
27
HSE, The Control of Substances Hazardous to Health Regulations 2002. Approved Code of Practice
and guidance, L5 (Sixth edition), 2013, para. 108
28
Reg. 7(3)(c), The Control of Substances Hazardous to Health Regulations 2002
21 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
HSE guidance on the PPE Regulations explains that the provision of PPE
should be a measure of last resort. Employers are expected to first take other
measures to prevent or control risks.
HSE guidance on PPE and Covid-19 says that PPE is not generally required to
protect workers from Covid-19, except in certain settings such as healthcare.
Face coverings are not a type of PPE.
Where PPE is provided it must fit and must, so far as possible, effectively
control the risk. PPE must be maintained and replaced as necessary. Further,
employees must be given training in the use of the PPE.
Employers must ensure that they do not discriminate in the provision of PPE,
in particular by taking account of different body types. Dee Masters and Jen
Danvers, barristers at Cloisters chambers, have highlighted that employers
who provide larger PPE, more suitable for men, could face claims of indirect
discrimination under the Equality Act 2010. 29
Consultation
As noted above, employers have a duty to consult safety representatives on
health and safety issues. There are separate rules depending on whether an
employer has recognised a union for the purposes of collective bargaining.
The legislation does not place any restrictions on the nature of the
consultation. Employers are not required to follow recommendations made by
safety representatives but the consultation must be genuine.
HSE guidance outlines how employers should consult representatives:
Consultation involves you not only giving information to your
employees but also listening to them and taking account of what
they say before making any health and safety decisions.
The law does not state when you must consult, or for how long, but
does say it must be ‘in good time’. In practice, this means you have
to allow enough time for your employees to consider the matters
being raised and provide them with informed responses.
Consultation does not remove your right to manage. You will still
make the final decision, but talking to your employees is an
important part of successfully managing health and safety.
The HSE has produced specific guidance on the issues employers will need to
discuss with safety representatives in the context of COVID-19.
29
Dee Masters and Jen Danvers, PPE & sex discrimination claims, Cloisters, 29 April 2020 (accessed 13
May 2020)
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2.3 Additional Covid-19 legislation
Throughout the course of the Covid-19 pandemic, the UK Government also
made a number of regulations to place additional obligations on businesses.
These included:
• An obligation on employers in the retail and hospitality sectors to ensure
that staff wore face coverings if they were likely to come into contact
with members of the public; 30
• An obligation on employers in the hospitality sector to collect staff and
customer details for Test and Trace;31
• An obligation on employers to display signs to remind people of their
obligation to wear face coverings;32 and
• An obligation on employers not to knowingly allow a self-isolating
worker to leave their place of self-isolation for work-related reasons. 33
On 19 July 2021, England moved into Step 4 and the government lifted most of
the remaining legal restrictions. With the exception of the regulations relating
to self-isolation, each of the regulations above were revoked.
Under the Health Protection (Coronavirus, Restrictions) (Local Authority
Enforcement Powers and Amendment) (England) Regulations 2020, local
authorities were given powers to enforce the coronavirus-related restrictions
on businesses. This included the power to issue improvement notices and
close businesses that did not comply with the regulations. The Regulations
were also revoked on 19 July 2021.
Under the Health Protection (Coronavirus, Restrictions) (England) (No. 3)
Regulations 2020, local authorities have the power to close individual
premises, events or public outdoor places. A local authority can only issue a
direction under these Regulations if there is a serious and imminent threat to
public health and the direction is proportionate and necessary to control the
spread of coronavirus. 34 The UK Government has produced detailed guidance
on the use of these powers.
The No. 3 Regulations have been extended until 27 September 2021 as a
“contingency measure”.35
30
Reg. 3, Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England)
Regulations 2020 (revoked)
31
Regs. 7-11, Health Protection (Coronavirus, Collection of Contact Details etc and Related
Requirements) Regulations 2020 (revoked)
32
Reg. 2A, Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England)
Regulations 2020 (revoked)
33
Regs. 6-9, Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020
34
Reg. 2, Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020
35
HC Deb 5 July 2021 c593
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2.4 Government guidance on working safely
On 14 July 2021, the Department for Business, Energy and Industrial Strategy
(BEIS) published new guidance on working safely during Covid-19. The
guidance outlines measures businesses in England can take to ensure the
safety of their workplace under the new Step 4 rules. It replaces the previous
working safely guidance which was first published on 11 May 2020.
The new guidance covers six groups of workplaces:
• Construction and other outdoor work
• Events and attractions
• Hotels and guest accommodation
• Offices, factories and labs
• Restaurants, pubs, bars, nightclubs and takeaway services
• Shops, branches and close contact services
Separately, HSE has published guidance on keeping workplaces safe as
restrictions are removed.
Status of the guidance
The new BEIS guidance, like the previous guidance, does not have any special
legal status. Each of the guides contains the following statement:
This guidance does not supersede your existing legal obligations
relating to health and safety, employment and equalities duties. It’s
important that as a business or an employer you continue to comply
with your existing obligations. This includes those relating to equality
between individuals with different protected characteristics. This
contains non-statutory guidance to take into account when
complying with these existing obligations. 36
In certain sections, the guidance reflects legal obligations. For example, the
guidance notes that it is illegal for employers to ask self-isolating workers to
leave their home for work-related reasons. This reflects the Health Protection
(Coronavirus, Restrictions) (Self-Isolation) England Regulations 2020.
As most legal restrictions on businesses have been lifted, many parts of the
guidance are now advisory. For example, the guidance notes that businesses
are no longer legally required to collect staff and customer details or display
the NHS QR code. However, it recommends that businesses continue to do so
in order to assist NHS Test and Trace.
36
BEIS, Working safely during coronavirus (COVID-19): Offices, factories and labs, 14 July 2021
(replicated in the other five guides)
24 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
The relationship between the guidance and health and safety law is more
complicated.
In a letter to the Work and Pensions Committee on 27 May 2021, Sarah Albon,
the Chief Executive of HSE, said non-compliance with the BEIS guidance might
indicate that a business is breaching health and safety law:
The Government’s guidance on COVID secure workplaces does not
have any special status in health and safety at work law. However,
an employer who is following the Government guidance on COVID
secure workplaces is likely to be satisfying relevant health and safety
at work law obligations. Conversely where an employer is not acting
consistently with the guidance this might indicate that they are not
meeting their health and safety at work law obligations, in which
case HSE could consider whether it is appropriate to take
enforcement action in those sectors for which it is the enforcing
authority. 37
However, she also said that if Covid-related legal restrictions are lifted, HSE
would return to focussing on risks that specifically arise from work activity:
In the event all legal restrictions are lifted and public health
authorities are no longer recommending any particular additional
measures to control the spread of COVID, i.e. a move from pandemic
to endemic infection risk, HSE’s enforcement approach will change to
keep pace and we anticipate our focus will return to risks created by
the work activity itself. HSE has not previously regulated the control
of community diseases, such as influenza, which are also present in
the workplace, and would not expect this to be any different with
COVID.
The new HSE guidance on keeping workplaces safe notes that employers still
have legal obligations under health and safety law, including ventilating and
cleaning the workplace. However, the language (“can” vs “must”) indicates
that other measures listed in the BEIS guides are advisory.
Priority actions
The BEIS guidance lists six priority actions for businesses to follow:
1. Complete a risk assessment that accounts for the risks of Covid-19
2. Provide adequate ventilation
3. Clean the workplace more often
4. Turn away people with symptoms of Covid-19
5. Enable people to check in at the venue (e.g. through the NHS QR code)
6. Communicate health and safety measures to staff
37
Work and Pensions Committee, Correspondence with the HSE about social distancing in the
workplace, 11 June 2021
25 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Who can attend the workplace?
As of 19 July 2021, the BEIS guidance no longer advises people to work from
home. However, the guidance “expects and recommends” a gradual return to
the workplace over the summer as the number of cases of Covid-19 remains
high across the UK.
The guidance also says employers should be mindful of the needs of individual
staff, particularly those who have yet to be fully vaccinated and those who
are at higher risk of severe illness:
You should give extra consideration to people at higher risk and to
workers facing mental and physical health difficulties. Those who are
clinically extremely vulnerable are no longer advised to shield. You
should continue to support these workers by discussing with them
their individual needs and supporting them in taking any additional
precautions advised by their clinicians. 38
The Government guidance for people who are clinically extremely vulnerable
to Covid-19 says they should follow general guidance as a minimum and
consider additional precautions, such as limiting close contact with people
they do not normally meet.
The Advisory, Conciliation and Arbitration Service (Acas) guidance on going
to work says employers should support vulnerable workers by allowing them
to work from home or providing extra safety measures in the workplace. The
HSE guidance on vulnerable workers says no additional measures are legally
required, although it says employers should ensure that measures which are
legally required, such as ventilation and cleaning, are implemented strictly.
The Acas and the Chartered Institute of Personnel and Development (CIPD)
have both produced guidance which says employers should consult staff on
plans for returning to the workplace.
Social distancing
As of 19 July 2021, the BEIS guidance no longer advises businesses to ensure
social distancing in the workplace. However, the guidance says Covid-19 can
be spread through social contact and that employers should considering
reducing the number of people workers contact, such as using fixed teams or
barriers to separate groups.
The UK Government’s Summer 2021 Roadmap said social distancing would be
retained in limited settings, including in healthcare settings.
38
BEIS, Working safely during coronavirus (COVID-19): Offices, factories and labs, 14 July 2021,
Section 2.1 (similar statements can be found in the five other guides).
26 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Ventilation
The new BEIS guidance places a greater emphasis on ventilation than the
previous guidance. It says businesses should maximise fresh airflow, either by
opening windows and doors or through mechanical ventilation. It also says
employers should identify areas with poor ventilation using carbon dioxide
(CO2) detectors.
As noted above, employers have a specific obligation under health and safety
law to ensure the workplace is adequately ventilated. 39 HSE guidance on safe
workplaces lists ventilation as a control measure that employers “must” take
after 19 July 2021. HSE has produced guidance on ventilation and Covid-19.
Cleaning
The new BEIS guidance continues to emphasise cleaning as a key measure to
limit the transmission of Covid-19. Again, employers have a legal obligation to
clean the workplace. 40 HSE has produced guidance on cleaning and Covid-19.
Personal protective equipment (PPE)
The use of PPE has generally not been recommended as a measure to reduce
the risk of transmission of Covid-19 in the workplace.
The previous BEIS guidance said employers did not need to use PPE unless it
was already being used in their workplace. Instead, it said the risk of Covid-19
should be managed through social distancing, hygiene and fixed teams. The
one exception was the guidance on close contact services (e.g. hairdressers)
which said staff should wear a Type II face mask and a clear visor.
None of the new BEIS guides, including the guidance for shops, branches and
close contact services, recommends the use of PPE. However, the guidance
says employers must provide PPE if it is identified as a necessary measure in
their risk assessment:
Do not encourage the precautionary use of PPE to protect
against COVID-19 unless you’re in a clinical setting or responding to a
suspected or confirmed case of COVID-19.
Unless you’re in a situation where the risk of COVID-19 spreading is
very high, your risk assessment should reflect the fact that PPE has
an extremely limited role in providing extra protection.
If your risk assessment does show that PPE is required, you must
provide this PPE free of charge to workers who need it. 41
39
Reg. 6, Workplace (Health, Safety and Welfare) Regulations 1992
40
Ibid., reg. 9
41
BEIS, Working safely during coronavirus (COVID-19): Offices, factories and labs, 14 Jul 20201, para. 7.1
(replicated in the other five guides)
27 Commons Library Research Briefing, 16 August 2021Coronavirus: Returning to work
Barristers at Cloisters chambers noted that in some circumstances employers
would have a legal obligation to provide PPE even if the BEIS guidance said it
was unnecessary (the quote refers to the previous BEIS guidance):
If an employer wants to restart their business and that business must
carry out work involving, for instance, high numbers of people in a
poorly ventilated enclosed space who are densely packed then it
may be that only high quality PPE can adequately control that risk. In
this scenario, an employer would need to consider whether the
Government guidance adequately ensures the safety of employees so
far as is reasonably practicable and may well need to consider the
use of COVID-19 PPE. 42
Face coverings
As of 19 July 2021, there is no longer a legal obligation for customers and staff
to wear face coverings in settings such as shops and restaurants. Businesses
also no longer have a legal obligation to display signs reminding people to
wear face coverings.
The new BEIS guidance says employers should still consider encouraging the
use of face coverings by staff and customers. The guidance for close contact
services says businesses may decide to ask customers to wear a face covering
in light of the increased risk posed by close proximity:
In close contact services, having considered the risk of COVID-19, you
may decide that in your premises you’re going to ask clients or staff
to wear a face covering, especially where practitioners are
conducting treatments which require them to be in close proximity to
a person’s face, mouth and nose. 43
HSE guidance on face coverings says face coverings says they are not a form
of PPE and are not covered by health and safety legislation.
2.5 Workplace testing
The UK Government no longer provides free workplace testing for employers
in England. Businesses can still arrange testing through private providers or
ask staff to use free rapid tests at home or at a testing site.
The new BEIS guidance does not specifically recommend workplace testing.
The guidance says employers that do decide to provide testing must do so in
a safe manner.
42
Cloisters – Employment, Tenth edition released of Cloisters Toolkit: Returning to work in the time of
Coronavirus, Cloisters, 5 March 2021, para. 2.11
43
BEIS, Working safely during coronavirus (COVID-19): Shops, branches, and close contact services,
14 July 2021, para. 7.2
28 Commons Library Research Briefing, 16 August 2021You can also read
