Legal guidance for employers preparing to welcome staff back to the workplace

Practical steps and government guidance

The government is in the process of developing and consulting on a number of schemes to enable employers to bring their employees back to the workplace as safely and efficiently as possible. These range from obtaining COVID status certification, indicating the transmission risk in a particular environment based upon clinical testing; to enabling small businesses to more easily collect rapid test kits from local authority sites or by delivery.

The government is also reviewing their guidance on social distancing and other long-term coronavirus mitigation measures. However, the existing guidance for workplaces remains a good indicator of the factors that employers need to think about. The government have produced guidelines on COVID security for 14 different work settings, ranging from offices to shops, factories and other people’s homes. Depending on the nature of your business, several of these might be relevant to different workers.

Essential checklist

The government has identified eight “priority actions” that will apply to most if not all businesses. In most cases, employers must:

1. Prepare a specific COVID-19 risk assessment, and share this with staff;
2. Ensure regular cleaning of the workplace, especially contact surfaces, and ask staff and customers to wash their hands or use sanitiser regularly;
3. Ask customers and staff to wear face coverings, especially in areas where they may encounter people they do not normally meet;
4. Take steps to encourage social distancing, for example by putting up signs or floor markings;
5. Consider ventilation: specific guidance has been issued on this point by the Health and Safety Executive;
6. Take part in test and trace schemes to most effectively track possible coronavirus cases;
7. Turn away staff or customers with coronavirus symptoms; and
8. Consider the impact of COVID-19 measures on people’s mental health.

When to use PPE

If a risk assessment concludes that PPE is necessary, this should be provided free of charge by the employer.

As things stand, it is a legal requirement for employees who are likely to work in close proximity to the public to wear face coverings unless they are exempt or have a reasonable excuse. However, the guidance concludes that PPE is of limited effectiveness when compared to social distancing and cleaning/hand washing, so it should only be relied upon as a sole measure where the nature of work necessitates close social contact. Healthcare settings will be the obvious example, but this will also apply to hairdressers, beauty parlours, tattoo studios and the like.

Other measures to consider

Other steps that employers can take will vary widely depending on the industry and workplace in question, but the general tone of the guidance emphasises that employers should be open to changing (whether temporarily or permanently) aspects of their work where this can help to mitigate COVID risk.

Examples could include changing working times or staggering shift patterns, to reduce the risk of large group contact; limiting work-related travel; or even reducing background noise so that there is less need for people to raise their voices and thus increase particle transmission.

Communication is key

Notwithstanding all of this, no amount of measures can guarantee that a workplace is completely safe from COVID, and employees may be wary about returning. As such, when planning a return to the workplace, the most important step to take is to engage in dialogue with your employees about the concerns that they may have and the measures that you are taking in response. This will help you comply with your consultation duties under health and safety legislation, but also is basic good practice in understanding and addressing staff concerns.

New legal developments

There are also ongoing developments in both legislation and case law that will be important for employers to bear in mind when handling COVID-19 security in the workplace.

The Employment Rights Act amendments

On the legislative front, the forthcoming Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 is due to come into force from 31 May. This Order will extend protection to workers, giving them the right to not be subjected to a detriment for refusing to attend the workplace or taking other steps to protect themselves, when there are circumstances of danger that they reasonably believe to be serious and imminent. Currently, such protection is only extended to employees, but a recent High Court case found that it was a breach of EU law (applicable at the time during the Brexit transition period) to deny this protection to workers too. The changes apply to all workplace dangers, but will of course be particularly pertinent in relation to COVID-19.

As such, employers will have to ensure that they have taken adequate steps to minimise health risks in the workplace before instructing employees to return. The protection prevents employers from applying any detriment to affected workers – so protects not only against dismissal but any unfavourable treatment, be it failing to allocate shifts, unwarranted disciplinary action, declining to investigate the worker’s concerns, etc.

Recent case law

However, the recent case of Rodgers v Leeds Laser Cutting Ltd demonstrates the limits of the duty upon employers, and will come as some comfort. In particular, the employer’s duty starts and ends at the workplace. The fact that there is a high coronavirus risk in the world at large does not automatically place employers in breach of their obligations. Here, Mr Rodgers’ employer had made adequate provisions for social distancing, cleaning and handwashing within the workplace and so it was not reasonable of him to believe that there was a serious and imminent danger to him within the workplace specifically. Be cautious if you are going to rely on this case, as it is not binding on other Employment Tribunals and is very fact sensitive.

Another recent case which represents more reason for caution on the part of employers is Kubilius v Kent Foods Ltd. Here, Mr Kubilius, a delivery driver, refused to wear a mask in his lorry while he was parked on a customer’s site, where masks had been made mandatory. Though the Employment Tribunal found that it was fair for Kent Foods to dismiss him, the important point to note was that this was not simply due to his failure to wear a mask. Instead, his refusal to wear a mask had seen him banned from the customer’s site and damaged Kent Foods’ relationship with that customer – and it was that which entitled the employer to fairly dismiss him.

If you are faced with a similar situation of an employee failing to follow COVID safety guidelines, any follow-up action must be carefully considered in light of the full circumstances. There may well be situations where dismissal for failing to wear a mask (for example) might be considered unfair – e.g. if the failure was accidental, the risk of transmission was low, and/or the financial consequences to the business were minimal. As with other disciplinary offences, a thorough investigation of the facts will always be important.

Useful links

• Get workplace tests: https://www.gov.uk/get-workplace-coronavirus-tests
• Allay (UK) Ltd v Gehlen case: https://www.gov.uk/employment-appeal-tribunal-decisions/allay-uk-ltd-v-mr-s-gehlen-ukeat-slash-0031-slash-20-slash-at
• Kubilius v Kent Foods case: https://www.gov.uk/employment-tribunal-decisions/deimantas-kubilius-v-kent-foods-ltd-3201960-slash-2020

For advice on these or any other employment law issues, please contact Malcolm Gregory at RWK Goodman on 01865 792300 or email malcolm.gregory@rwkgoodman.com.