COVID-19: New Health and Safety Updates for Employers and Businesses

The UK's Roadmap has been divided into four key steps made up of five proposed dates. Each step should trigger various restrictions being eased (subject to the prevailing data on COVID-19 available at the time). As of 10 May 2021, England is within 'Step 2' of the Roadmap, with Step 3 due to be introduced (at the earliest) from 17 May 2021.

In September 2020, the Government announced a new approach to working from home, in light of a spike in COVID-19 cases recorded across England, which recommended that office workers should work from home through the winter, in situations where "an employer, in consultation with their employee, judges an employee can carry out their normal duties from home". This was in contrast to the previous Government position, which encouraged office employees to return to work where it was safe to do so. Please see our earlier briefing for further details.

On 4 January 2021, the Government announced a full national lockdown across England. During this period, although people were technically allowed to leave their homes for work if they could not "reasonably" carry out their job remotely, in practice, given the wider restrictions in place at the time, the majority of offices throughout England were fully closed.

• In May 2020, the UK Government published its first COVID-19 Recovery Strategy (superseded by the Roadmap) and COVID-19 Secure Guidelines ("Secure Guidelines"). The Secure Guidelines provide information for employers on how to make their workplace 'COVID-secure'. Please see our earlier briefing for further details.
  
  
• The Offices and Contact Centres guideline, published as part of the Secure Guidelines, is specifically designed to be relevant for people who work in or run offices (or similar indoor environments), continues to remain in place and was last updated on 30 March 2021 (the "Office Guidance"). The Office Guidance states that "office workers who can work from home should do so" and that this working from home guidance specifically "will remain in place until at least Step 4 of the roadmap" when all workplace guidance is expected to be updated following a wider review of social distancing restrictions.
  
  
• Step 4, which could potentially see all legal limits on social contact removed, is not due to be reached until 21 June 2021 at the earliest. Given that the Government has not brought forward any of the previous Step dates, it is unlikely that working from home guidance will change prior to this date. Further support for this position is contained in the Roadmap itself, which states that before Step 4, "a review of social distancing and other long-term measures that have been put in place to cut transmission" will be carried out and that this review will "inform guidance on working from home – which should continue wherever possible until this review is complete."

In practice, many employers have been starting to open up offices on a reduced basis since Step 1 of the Roadmap was introduced on 8 March 2021. The Secure Guidelines do not contain an absolute prohibition on individual's returning to the office, and there are a number of legitimate reasons why it may not be possible for employees to continue working from home (including mental health concerns and the fact that certain home working environments are not especially well set-up for prolonged periods of remote working).

Many organisations are currently reviewing their "return to work" plans and considering whether their employees are able to continue carrying out their work from home on a more extended basis. Cabinet Office guidance for England states that employers should "take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working."  In many cases, employees continue to be encouraged to exercise their own judgement – the default option for many to continue working remotely.

The broad position under the Office Guidance currently is that employers must take reasonable steps to make their workplaces COVID-19 secure in order to properly discharge their duty of care to their employees – as outlined previously by us here.

This position has not changed significantly since the Secure Guidelines were first introduced in May 2020, and indeed the Office Guidance has not materially changed since it was originally implemented – although some additional priority actions have been added (such as providing adequate ventilation, encouraging testing and considering the mental health and wellbeing aspects of COVID-19).

Businesses reopening following the easing of lockdown restrictions should review their fire risk assessments, according to the London Fire Brigade. As was the position prior to COVID-19, 'responsible persons' are required to carry out a fire risk assessment of their premises. Employers may need to revisit their risk assessments and consider the impact of these measures on things like the number of fire wardens, fire evacuation plans and potential increased fire risk associated with any physical changes that are made to their premises.

By way of example, almost all businesses are required to have competent persons/fire safety wardens appointed to assist the responsible person in reducing fire safety risks Guidance makes it clear that some flexibility in terms of the provision of these individuals can be exercised, where it is safe to do so (in accordance with a risk assessment). It may therefore be sensible to consolidate employers in one area to reduce the number of wardens which are needed.

In terms of first aid, the Health and Safety Executive has published guidance on how to manage first-aid cover during the pandemic encouraging some flexibility, whilst emphasising that underlying legal obligations have not changed. We would recommend that businesses carry out a full risk assessment to ensure that cover is in place to discharge underlying legal obligations (particularly where work patterns are impacted). Ultimately COVID-19 does not alter underlying legal obligations on employers (albeit, where working patterns have changed dramatically, the provision of first aid support/competent persons for fire safety purposes may understandably reduce and/or change). 

It remains the case that there is no legal requirement to carry out workplace COVID-19 testing. Where an employee is exhibiting symptoms of COVID-19, it could be reasonable in certain circumstances to require them to be tested for COVID-19 (i.e. where the specific purpose is to protect other employees). Otherwise, any COVID-19 testing would need to be justified on the grounds that it was both necessary and proportionate.

However, it should be noted that as part of the most recent Office Guidance update, it was added to existing guidance that "regular testing, alongside control measures to reduce the risk of COVID-19 transmission, will have a key role to play in future." This position aligns with the Government's wider introduction of a voluntary programme for households across England to receive free rapid lateral flow tests, aimed at finding cases of COVID-19 that would otherwise go undetected.

The Office Guidance directly links to additional guidance produced by the Department of Health & Social Care (dated February 2021) that explicitly states that it wants "as many employers as possible to sign up to regularly test their employees" although that it is a "voluntary decision for employers to run testing programmes for their staff."

As with workplace testing, it also remains the case that COVID-19 vaccines are not mandatory in the UK (although a consultation was opened in April 2021 on whether to make vaccination a requirement for those working in older adult care homes).

The Advisory, Conciliation and Arbitration Service ("Acas") has stated that employers should "support staff in getting the COVID-19 vaccine once it's offered to them" although that there is "no law that says people must have the vaccine." In the absence of any specific legal requirement to have a vaccine, employers cannot directly force an employee to be vaccinated – although please see our earlier briefing for further details.

To date, the amount of H&S litigation in connection with COVID-19 has been relatively limited. That said, in recent months some employment tribunal claims have begun to reach the hearing stage which provide a good indication of the type of approach that a court might take.

• In Kubilius v Kent Foods Limited, an employment tribunal held that an employer had fairly dismissed an employee who refused to wear a face mask when visiting a customer's site in May 2020. One of the key takeaways from this case was that the company's mask policy was clear, which gave reasonable grounds to conclude that the claimant's actions in refusing to wear a mask were misconduct. However, employers must still strike the right balance on enforcing the use of masks, as certain employees may be exempt.
  
  
• In Rodgers v Leeds Laser Cutting Ltd, a tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown was not automatically unfair. The case was very fact specific and ultimately the tribunal found that a reasonable belief in serious and imminent workplace danger could not be shown by the claimant in the instance.

In both of these cases an important factor in deciding in favour of the employer was that policies and procedures had been properly implemented and that, in the latter instance, the employer had followed the Government guidance in place at the time to protect employees. This emphasises that employers should always refer back to the  Secure Guidelines where there is an element of doubt as to what approach to take – and should be cautious about opting to ignore the guidance where it is clear.

Although there has been no acceleration of the Roadmap to date, it may be the case that additional workplace guidance will be released in advance of Step 4 (21 June 2021). For the time being, employers should continue to follow the existing guidance closely and continue to support employees working from home where possible.