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HCR Law Events

9 March 2021

Regulatory enforcement after Covid-19 and your workplace

This week has seen the first step back towards to a more normal life, which will lead us to returning to our workplaces within our businesses.

The ‘stay at home’ rule will end on 29 March 2021, but many restrictions will remain in place and we are being encouraged to work from home where possible. However, from 12 April 2021 (at the earliest) non-essential retail and businesses will be allowed to re-open, including indoor leisure facilities. By 17 May 2021 (at the earliest) all but the highest risk business sectors will be able to re-open.

Inevitably, businesses will need to resharpen their risk assessments and safe systems of work. Many businesses by now will have put in place specific Covid-19 risk assessments and, certainly in the short term, it would be wise to retain some of the measures in the Covid-19 risk assessments.

As always, the starting point is to comply with the obligations in sections 2 and 3 of the Health and Safety at Work Act 1974 (HSWA). All reasonably practicable steps must be taken to ensure the health, safety and welfare of your workers and anyone else impacted by your operations.

By way of reminder, a breach of HSWA 1974 is a criminal offence enforced by the Health and Safety Executive (HSE), local authority Environmental Health Officers, and the police (where there has been a fatality and there is the possibility of corporate manslaughter and/or individual gross negligence manslaughter).

The HSE’s position on Covid-19 enforcement

Figures released by Public Health England at the end of February 2021 show there had been 3,549 Covid-19 outbreaks in workplaces, including offices, factories, and construction sites, since July 2020. There were 100 outbreaks during the latter part of February 2021 alone, despite the country still being in lockdown, when only essential workers were supposed to be travelling to work.

Analysis of the HSE’s enforcement database reveals there have been no Covid-related prohibition notices, which allow inspectors to immediately halt activity in workplaces deemed injurious or damaging to health, since March 2020.

So, what’s going on?  Employment minister Mims Davies has stated that Covid-19 had been classified as significant rather than serious, as it “best supports inspectors in making sensible, proportionate regulatory decisions”.

She added that effects of Covid-19 were “non-permanent or reversible, non-progressive and any disability is temporary” for the working population as a whole.

Therefore, the HSE has decided not to place Covid-19 in its highest risk category but that (according to a spokesperson for the HSE) it was “wholly inaccurate” to suggest the HSE was not treating the pandemic seriously.

The HSE has maintained the position that it would ‘prosecute where appropriate’, but it has stressed that it was ‘facilitating swift responses by employers through direct persuasion, advice and reprimand, not slower legal proceedings.’

This is interesting in that, according to a trade union, no employers have been prosecuted for Covid-19 safety failings since the start of the pandemic. This suggests a tangible tension now between government policy and the inspection of businesses by the HSE.

On the one hand, this can be seen as the HSE working with employers to put in place business improvements and recognizing the difficult challenges employers have faced over the course of the pandemic. The lack of formal enforcement may also suggest that practically all employers are well intended and have needed support, not enforcement, to keep people safe.

On the other hand, it seems that the HSE is unable to issue enforcement notices due to the classification of the virus as a significant threat and not a serious threat.

This seems at odds with the data, as the HSE has been inundated with Covid-related safety complaints during the pandemic. It has dealt with over 100,000 Covid-19 cases, with nearly 25,000 complaints coming from workers and the public in January.

Despite the contradiction present between the policy and tactical elements of the HSE, our advice to our clients is that this is not a time to be complacent.  It is very likely that the HSE will investigate those businesses where very little has been done to control and mitigate Covid-19 risks, as this could be seen as indicative of having poor health and safety policies and procedures in place.

Defensibility

The reopening of business premises is not going to happen overnight. Once you have made your premises safe, staff need to feel comfortable and reassured about returning to the workplace, irrespective of whether the HSE will come knocking on the door.

From a defensibility point of view, it is paramount for your business to have documented and detailed risk assessments which are disseminated to all workers setting out the specific requirements.

Points to implement as a minimum

Many will be familiar with classical risk management theory and specifically the hierarchy of risk control, where you look to eliminate or engineer out risk and then you work through other risk reduction mechanisms.

The most effective control in terms of elimination, of course, is vaccination. Only an effective vaccine or treatment that prevents the most severe symptoms will eliminate the risk.

It is likely that Covid-19 is a virus that we will need to work alongside for some time to come.  With this in mind, you will still need to focus on reducing and controlling what you can, along with the using PPE if you need it. Therefore, a hierarchy of risk management controls could look like this:

  • using engineering controls
  • using administrative controls
  • deploying safe work practices to protect workers from exposure to risks.

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About the Author
Heath Thomas, Partner, Head of Investigation, Regulation and Tax, and Thames Valley Office

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