Anna Fletcher: Hello and welcome to this latest in our series of Podcasts looking at returning to the workplace post-Covid. I am Anna Fletcher, I am a Legal Director in our Employment, Labour and Equalities Team here at Gowling WLG and, today, I am joined by Andrew Litchfield, a Partner in our Dispute Resolution Group, who is a well‑known health and safety expert.
Andrew is going to look at some of the issues facing employers as people start to return to the workplace but also, of course, not forgetting those who continue to remain working in the normal workplace during the course of the pandemic and the health and safety issues that might arise there. So, Andrew, what do you think people- employers should be thinking about now?
Andrew Litchfield: Hello everybody, hi Anna. The Covid risk…despite freedom day, the Covid risk has not gone away. It is still there, it is still out there and it continues to evolve so, in some ways, it is possibly a little bit worse than it has been at the moment, because those cases are continuing to rise just at the moment. But, on the other hand, it is a lot better because of the vaccination programme that the government have been going through.
So, the risk continues to evolve. Sitting behind all of it is the duty that an employer has, not a Covid specific duty, but the duty an employer has to ensure, as far as reasonably practicable, that their employees and anyone else who is affected by what the employer does, is not exposed to risk to their health and safety. And the way that they need to discharge that duty/Covid risk- exactly the same way as every other risk- is to conduct risk assessments: taking account of the latest position or the latest information about the risk and then put in place control measures as a result of that risk assessment which identifies the risk and then takes… puts into place practical steps to eliminate, if not reduce as far as possible, the latest risks that arise from the condition.
Anna: I know over the last 16 months or so we have had regular conversations about the guidance and it changes a lot, but what is the latest guidance saying that employers need to be focussing on, including risk assessments obviously?
Andrew: Yes, so the government has this week, or very recently, of course, stripped away all the biggest guidance and replaced it with new guidance following freedom day. But nothing fundamentally has changed as a result of that guidance. As I said, it is still necessary for an employer to conduct a risk assessment and the control measures that flow from that risk assessment remain exactly the same.
The most important of which I think is that employees should know or visitors should know that they should not attend any premises if they have symptoms or if they suspect that they have been in contact with somebody who has. But the idea being, of course,; that you keep the virus out of the workplace in the first place and then following on from that is other practical steps, which everyone has got used to, to make the premises 'Covid secure'. So, lots of cleaning, enhanced cleaning still has to be done; ventilation is really important. There is a debate about face coverings, which is raging in the press and raging more generally but an employer is free and able to consider face coverings as one of its control measures, if necessary.
And then I think most importantly- because there is a legal element to this as well as a sort of human element- it is really important to communicate with the employees and with the visitors about those control measures to make sure they understand what the workplace will be like when they visit. Make sure they understand what they need to do when they are there; make sure that contractors and visitors understand what they need to do when they are there; and make sure all that is clear so that those control measures are followed in practice, and work effectively to minimise the risk.
Anna: We hear a lot about office ventilation, for example. Is there any specific guidance for employers so far as ventilation is concerned?
Andrew: The two key places to look in terms of guidance are the government guidance, which we have mentioned, but also the Health and Safety Executive have issued its own separate guidance, which is good and accessible and practicable and available on the HSE website. In terms of ventilation, ventilation is now… much more now than at the beginning of the pandemic, recognised as a really important control measure and the risk assessment should identify areas which are poorly ventilated and the guidance encourages the use of carbon dioxide monitors to identify those poorly ventilated areas.
And if ventilation cannot be improved in those areas then an employer should consider whether to eliminate the use of the area altogether or to restrict the numbers of people who have access to it or the time that they spend there. And, of course, the use of outside space is encouraged if that is practicable and available and can be done as well.
Anna: Lots for the employer to be thinking about in terms of that assessment. So, if we turn to some particular categories of employees and, obviously, we have been advising clients on managing the communication piece and dealing with employment-related issues but in terms of people who are critically extremely vulnerable, now that the sort of shielding arrangements have been lifted - again is there any guidance on how employers should be dealing with individuals who fall into that category?
Andrew: So, all roads, regardless of the nature of the risk, all roads lead to the risk assessment and we have spoken about it a lot already. And the risk assessment in relation to Covid should consider the task that people are being asked to do, which includes how close they are to other people and whether they are facing them or… so the task. It should consider the area, where they are doing the work - is it a well ventilated area or not, we have discussed.
And finally, it needs to take into account the individual, the person or the people who are involved in the task and the HSE guidance encourages employees… employers to discuss returning to the workplace with anyone who is critically extremely vulnerable. Again, there is a big piece around communication to explain to that individual that the measures that are in place in the workplace are to see whether it is Covid secure or not - to discuss and have an open conversation with them about how that might work bearing in mind their individual circumstances and what makes them critically extremely vulnerable.
And the guidance and the advice is that an employer should take every possible step to enable a vulnerable person to work from home if it is not possible or safe to come into the office in those circumstances. But if that is not possible, if it is not a task that can be done at home or a job that can be done at home, then employers can continue to use the coronavirus job retention scheme and furlough workers until the end of September 2021.
Anna: Thank you. So, if we return to the workplace in perhaps more significant numbers or, for those employers where people have been attending the workplace, we have been hearing a lot about the rising number of cases, of infection - what happens? What should an employer do if there is actually a Covid outbreak in the workplace?
Andrew: It is… of course, it is very difficult to tell is it not, whether an outbreak is, or whether an individual case is the result of a workplace exposure or something that is happening in the workplace, which means that the risk is not properly managed. But if it looks like positive cases of COVID-19 are arising from the workplace, irrespective of the number, then the employer should inform the local authority and/or Public Health England and those contact details are freely available and easy to get hold of.
And of course, they should contact and let the individuals know. They should not wait for NHS Test and Trace in order to do that. If they become aware that there is a potential problem then the immediate need is to identify the people who have had close contact with the positive case or cases, tell them quickly and keep them… advise them not to come in. And then advise them to isolate, bearing in mind the rule changes that are coming in relation to isolation, but if worried get a test… get a test done and put your mind at rest.
Anna: Yes, we are waiting with interest to see what happens in mid‑August in relation to the rules on self‑isolation. So, there is clearly a big onus on the employer here, but do I actually- do I as an individual employee… do I have obligations to my employer about how I am behaving?
Andrew: You have obligations to your fellow employees. And actually, there is a duty, under the Health and Safety at Work Act, which requires an employee to conduct their work activity in a way which considers and ensures, so far as reasonably practicable, that they and anyone else who is affected by what they are doing, are not exposed to risk. Breach of that duty is actually a criminal offence so there is potentially quite a big stick that an employer could use to try to influence or persuade an employee to comply for example with the control measures that their risk assessment has generated.
Because if they breach that duty, if they do not take steps to ensure their own safety or the safety of others, then that is potentially a criminal offence that they can commit as an individual. And of course, there is a duty on everybody to co‑operate with each other and to ensure that they are behaving in the right way. I think the use of the legal duty should be a last resort because that relates back to the communication piece and the way that employers and employees speak to each other.
Everybody is trying to get to the same end point, which is that the workplace is safe and everyone is able to work and feel safe when they are there. So, you would hope that in the vast, vast majority of cases employers and employees can work together and co‑operate with each other in order to achieve the mutual aim.
Anna: Absolutely and I think that we would all agree that those are the last steps that you would want to take. But it is clearly an issue which may need some very careful handling if, as we return to the workplace or as the situation develops, employers need to take advice because clearly, every case is going to be different. Every workplace is different but that is very helpful to understand though that there is that ultimate requirement on the employee.
And you mentioned earlier about the changing rules on self‑isolation and, as I say, I think you know we move forward with some degree of uncertainty. I suspect that actually those rules may well be changed so, with that in mind, what is the situation where an employer is in a position where they have key workers, who you know potentially can come into the workplace who do not have to self‑isolate?
Andrew: So, I think the current situation is that it remains the case that if you are notified by NHS Test and Trace that you have been in contact or close contact with someone who has tested positive… it remains the case that, by law, you must self‑isolate, regardless of your vaccination status. And to fail to do that remains a criminal offence.
The proposal from mid‑August, as I understand it, is that if you are fully vaccinated, you will be exempt from the requirement to self‑isolate if you have been in touch with somebody who has tested positive. But the advice is that you should take a PCR test yourself as soon as possible. There is also… there has been, and continues to be, a lot of debate about those who are under 18, I think impacted by the huge impact there has been, particularly in the latter half of the summer term on schools and people being out… youngsters being out of school. But the proposal, I think, for under 18s is that you do not… they will be exempt from having to self‑isolate after a contact.
But as with adults, the advice is that… there will be some advice about whether a PCR test is needed. If you are 18, as I understand it, you will be treated in the same way as the under 18s for four months after your 18th birthday and that is to give you the opportunity to go and get your jabs and get vaccinated. But of course, then if you do test positive you will need to do the self‑isolation regardless of your vaccination status or your age.
Anna: I think that the discussion about key workers and the impact of self‑isolation on employer's ability to continue… not going to continue with the delivery of service between hospitality and manufacturing and that has been a very high profile discussion. In terms of that whole situation around key workers, are there any health and safety specific issues around for the vaccination declaration?
Andrew: Yes, so this becomes… this is an area, as we have discussed between ourselves Anna, where it becomes a grey area between health and safety law and various other employment law and also data protection law. And from a health and safety perspective, the duty is the straightforward one that I mentioned at the beginning. The duty remains to ensure, as far as reasonably practicable, that people are not exposed to risk and… but the question about whether someone is vaccinated or not is an important part of the risk assessment that we have been talking about and particularly the person specific element of that risk assessment.
If you have got somebody who is prepared to tell you that they are vaccinated, your risk assessment might reach a different output than if somebody refuses to tell you that. And it is also relevant, of course, because those individuals might themselves be coming into contact with somebody who themselves are vulnerable for an unrelated reason. So it is an important part of the risk assessment and the control measures from a health and safety perspective but you are, I think, better qualified than me to talk about the employment aspect and perhaps the data aspect.
Anna: Yes, and certainly we know from talking to clients there are issues around identifying your lawful basis for processing if you ask for that information. Here you have got the employers' legitimate interests to ensure that people are fully vaccinated. I think one of the issues that we are likely to see is the situation where there is a challenge about whether requiring or requesting that information, actually of itself, amounts to a lawful order… lawful request and whether disciplinary action may well follow.
All of that obviously needs to be examined in detail as with all of these things you know… everything is very, very fact specific but we are expecting there to be a degree of concern from employers on this particular issue. And, at the time of recording this, we have just been advised that the government itself will not be producing a list of key workers, it is going to be for organisations to actually apply for that status.
So, even greater uncertainty, I suspect, for employers but it is good to hear that, fundamentally, the risk assessment is absolutely central and this is a bolt‑on, if you like, to all the existing obligations the employer has.
So, I just want to thank you for all of your really valuable insights, Andrew. If those listening have particular health and safety queries, Andrew is the person to contact. He and his team will be very happy to help you. If you have focussed questions relating to employee issues, then it is our team and anything relating to data protection that will be Jocelyn Paulley and her team. But we are all here to help you deal with any issues that you have.