Paul Rogers analyses Covid-19’s impact on employer’s duties under HSWA 1974

In response to the Governments measures currently in place to combat the threat that Covid-19 poses Paul Rogers has analysed what impact this might have on an employer’s duty to its employees under HSWA 1974.

First published on LexisPSL on 1 April 2020, this piece looks at the risks for employers and the steps they might take along with the position of homeworkers and existing HSE guidance.

What is the impact of Covid-19 on employer’s duties under the HSWA 1974?

On current scientific information and based on the extraordinary measures undertaken by government, it would be reasonable to assess Covid-19 as presently posing a significant risk to the health and safety of all persons coming into close (under 2m) contact with each other. This may also extend to coming into contact with surfaces contaminated by those who are infectious. Given that many infectious persons may be asymptomatic this is a particular concern. As such the arrival of Covid-19 will require every employer to assess those risks, and put in place such measures as are reasonably practicable to eliminate/avoid them or if not to reduce them as low as is reasonably practicable. These concepts are not new, but their application is.

Section 2 HSWA 1974 imposes a duty on every employer to ensure as far as is reasonably practicable, the health, safety and welfare at work of all of its employees. This broad duty is underpinned by the Management of Health and Safety at Work Regulations 1999 (MHSWR), and in particular the risk assessment process required under Regulation 3 to carry out a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed whilst they are at work, and the risks to others not in the employment of the organisation arising out of or in connection with the conduct of the undertaking.

Employers will have to undertake a risk assessment of the risks arising from the conditions of working that they require their workers to operate within. Clearly, home-working is an obvious mitigation measure that will remove the risk of infection at the workplace at a stroke, but home-working comes with its’ own obligations on the employer to risk assess the working conditions of its employees required to work from home. (see below)

Understanding the risks requires understanding what the risk is and how it arises. This will be based on current scientific advice. Here the risk is of the transmission of a highly infections virus. However, the mechanism of transmission of the virus is not fully understood as yet, and will thus pose significant challenges in identifying appropriate control measures. What is known is that the virus is transmitted in the air, and enters the body through the eyes, nose or mouth. It also seems to be the case that it can be transferred from a surface by touch, and then touching the eyes, nose or mouth.

In confronting those risks different businesses will differently assess the risk of transmission, and the risk may well not be the same in different parts of those businesses. For example, health workers who are exposed to the risk of high doses of the virus from very sick patients such as those receiving intensive treatment, will require stringent control measures such as face-fit PPE, disposable gloves, disposable clothing etc which will itself be subject to stringent methods of disposal/disinfection of infective material. In contrast, an office worker in an administrative business (if not home-working) will likely not require medical face fit masks and medical PPE, as social distancing together with regular hand-washing and toilet/office cleaning, and the provision of advisory information may be sufficient depending on the circumstances. Likewise it may be easier to physically separate office workers within an office, than those who are operating machinery or on a production line. It is likely that for all, the provision of good handwashing facilities will be an important control, together with protocols for how social distancing is maintained within the building generally and in toilet/washing facilities. Further a regular and enhanced programme of cleaning within the work place is likely to be necessary with a particular emphasis on places/objects people touch such as handles, bannisters, lift call buttons.

The provision of information to employees about risks to their health and about steps they can take to mitigate those risks is an important part of the obligations of an employer under MHSWR. Regulation 10 requires an employer to provide information for its employees which should be “comprehensive and relevant” on the risks to their health and safety, together with preventative and protective measures. Clearly that information cannot be provided unless those risks have been considered and the control measures and processes identified.

In the context of specific duties to inspect certain equipment, the current restrictions on movement will mean that those with duties of inspection under LOLER (Lifting), PUWER (Work Equipment) and PSSR (Pressure Systems) may find it difficult to renew their inspection certificates and thus potentially fall foul of the strict liability provisions of much of this legislation.

The position of Homeworkers

HSE Guidance makes clear that the same health and safety responsibilities exist for an employer whose employees work from home as for those that work at an office, factory or other place of work. Particular issues that will need to be considered as part of the employer’s risk assessment will include what work activity they will be doing and for how long.

Many workers are likely to be using lap-tops or other computer equipment with screens. The Health and Safety (Display Screen Equipment) Regulations 1992, applies to a workstation. A workstation is, broadly, display screen equipment whether it has software or a mouse/keyboard, or other attachments such as a printer or modem, and includes the immediate work environment around the equipment. The screen does not have to be provided by the employer and so any such equipment will likely be considered a “workstation” and thus require an assessment under the Regulations. Laptops are portable devices normally exempt from the requirements of the Regulations, if those devices are not in “prolonged use”, but if the person is now working full-time from home using such a device then the Regulations may bite. Current HSE Guidance on the application of the Regulations suggests that those working temporarily from home may not need to undertake a workstation assessment, but for those working from home on a “long-term basis” (undefined) an assessment should be carried out. As the lock-down progresses there will likely come a point of transition to where working becomes long term.

It would be prudent therefore for an employer to send the practical workstation checklist (available on HSE website https://www.hse.gov.uk/pubns/ck1.pdf) to its employees for them to complete, and also to provide basic advice about simple steps that can be taken to break up long spells of working with display equipment. This could be in the form of an advice sheet containing the information at https://www.hse.gov.uk/toolbox/workers/home.htm. Employers should also look to protect home workers from the effects of isolated unsupported working on their stress levels. HSE has developed guidance for managing these risks and separate guidance for employees working in those situations found at: https://www.hse.gov.uk/lone-working/employer/index.htm. In particular employers will need to ensure that there are effective supervision mechanisms in place to support those who are home working. This could include regular telephone or face-to-face communication such as through Skype/Zoom etc. What level of supervision is required will be informed by the assessment of the risks arising for that worker from home working.

By way of an update HSE on 2 April 2020 published guidance on social distancing https://www.hse.gov.uk/news/social-distancing-coronavirus.htm and its approach to enforcement and in particular they are recommending that where workplaces remain open that PHE Guidance on social distancing and hygiene is implemented where possible. Where this is not being done HSE have said they will consider enforcement notices.

Please contact Nick Levett on 020 7427 4908 or Adam Macdonald on 020 7353 6381 for further information on Paul and his practice.

Covid-19 3 Apr, 2020