Health and safety considerations when re-opening your business

Thursday 23rd April 2020

It is a case of when, not if, the Covid-19 restrictions will be relaxed. The relaxation will likely be gradual but when that happens you will want to be prepared to meet your obligations under health and safety legislation.

Most businesses are familiar with their general duties under the Health and Safety at Work Act to ensure, as far as is reasonably practicable, the health, safety and welfare at work of all its employees. This general duty also extends to “non-employees” such as contractors, agents and customers.

Several specific obligations that employers should have front of mind in relation to Covid-19 are:

  • the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of employees; and
  • the provision and maintenance of a working environment for employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

Essentially, all employers will need to develop a safe system of work to meet the challenges posed by the spread of Covid-19 and provide clear instructions to their staff how to work safely at all times. Additionally, given the clear and universal guidance about the need to wash hands it is imperative that adequate facilities are available.

Management Regulations

The Management of Health and Safety at Work Regulations 1999 impose a legal obligation on employers to put in place arrangements to control health and safety risks, which includes the risk posed by the spread of Covid-19.

In the current climate, and amongst other requirements, employers must assess the risks to employees, contractors and customers, in respect of the spread of the disease, who could be affected by their activities. Any significant findings should be recorded in writing (if you employ five or more people). Any risk assessment must be suitable and sufficient.

Employers must also have in place arrangements for the effective planning, organisation, control, monitoring and review of the preventative and protective measures that come from its risk assessment. This is often the area where businesses are most prone to breaching the regulations, by not ensuring its safe system of work is being followed correctly and taking action against staff who don’t follow the rules.

Additionally, businesses should allocate time before they re-open to provide suitable and sufficient information and training to their staff, so that they are aware of the risks and how to deal with them. This information and instruction will need to be kept up to date with tool box talks.

Whilst your risk assessments, planning, information, training and supervision of work need to be both suitable and sufficient, it is not the case that employers must eliminate risk at all cost. A reasonable and proportionate approach is required as identified by your risk assessment.

“There is a need for a sensible and proportionate approach to risk management, in short, a balanced approach – this means ensuring that paperwork is proportionate, does not get in the way of doing the job, and it certainly does not mean risk elimination at all costs.” 

– Judith Hackitt, HSE Chair, HSG65

Personal Protective Equipment

A lot has been written in the press about the lack of suitable Personal Protective Equipment (“PPE”) being available. In terms of an employer’s legal obligations to provide PPE this can primarily be found in the Personal Protective Equipment at Work Regulations 1992, principally regulation 4(1) which provides that:

“Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective” (emphasis added).

Additionally under those regulations the PPE shall not be suitable unless, amongst other things, it is appropriate for the risks involved, the conditions at the place of work and the period for which it will be worn.

However, the use of PPE should only be the last resort where other controls are not sufficient to eliminate or reduce the risk as far as is practicable. When developing your safe systems of work you should also consider the provision of instructions, procedures, training and, just as importantly, supervision to encourage people to work safely and responsibly.

As a minimum businesses should follow, and keep up to date with, Government’s guidance and that published on the HSE’s website. See for example https://www.hse.gov.uk/news/coronavirus.htm?utm_source=hse.gov.uk&utm_medium=refferal&utm_campaign=coronavirus&utm_content=home-page-banner

RIDDOR

The Health and Safety Executive’s website has provided a very helpful section on when a RIDDOR report relating to Covid-19 must be made. The following is an extract from that website:

You must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when:

  • an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
  • a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
  • a worker dies as a result of occupational exposure to coronavirus

The full HSE guidance can be found here https://www.hse.gov.uk/news/riddor-reporting-coronavirus.htm

For further information or advice on health & safety in the workplace please contact Andrew Logan below or visit our Regulatory & Compliance page.