Coronavirus: Returning to work - By Daniel Ferguson 16 August 2021 - UK Parliament

 
Coronavirus: Returning to work - By Daniel Ferguson 16 August 2021 - UK Parliament
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.uk
Number CBP 8916            Coronavirus: Returning to work

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Cover page image copyright: Pedestrian movement by Brian Merrill / image
cropped. Licensed under Pixabay License - no copyright required

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                           2                                         Commons Library Research Briefing, 16 August 2021
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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

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4.2    Hybrid working                                                          41

5     Whistleblowing                                                          43

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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.

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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.

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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.

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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 2021
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      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 2021
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      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 2021
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      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 2021
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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 2021
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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

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      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 2021
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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
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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 2021
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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

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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’)

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      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

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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

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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)

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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

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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).

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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)

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      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 2021
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