A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
After weeks of uncertainty and restrictions, Sunday 10 May saw the announcement of the blueprint for the slow but steady easing of lockdown restrictions in the UK. The ‘roadmap of options’ gives businesses hope that they may soon be able to resume operations in some form, though for most a return to ‘business as usual’ remains distant.
While the battle against COVID-19 is far from over, the strategy published on Monday 11 May has given much-needed clarity to businesses about the likely timescales for resuming their operations.
Throughout the crisis, we have been advising essential businesses on operating safely and in accordance with regulations and government guidance. Though there are many factors to consider in light of the ongoing restrictions, planning for a return to work does not need to be overwhelming. There are many lessons to be learnt from the best practice adopted by organisations throughout the lockdown. To understand more about your health and safety obligations during the pandemic, please see our previous e-briefing on the topic.
Whether you are planning to resume operations shortly or you are wisely planning ahead, here are our top tips to consider when preparing for a return to work:
1. Business, but not as usual
While it might be tempting to strive for a return to ‘business as usual’ as soon as possible, it’s important to remember that the priority must always be the health, safety and wellbeing of your employees. Employers have an obligation under section 2(1) of the Health and Safety at Work Act 1974 to ensure the health and safety of their employees so far as is reasonably practicable.
Organisations should consider whether it’s necessary for all employees to be at their place of work at once. Only workers who cannot work from home should attend their usual workplace, avoiding public transport wherever possible.
Where it is possible for your employees to work from home, these arrangements should continue. For more information on how to support those working from home, please see our previous e-briefing on the latest Health and Safety Executive guidance.
2. Returning to work: review all relevant risk assessments
The coronavirus crisis has changed the way we work indefinitely. In planning for employees to return to work, businesses must proactively review all relevant risk assessments well in advance of their workers’ return and take any actions necessary to mitigate the risk of infection, but also to identify and control any new risks that could have arisen during lockdown.
For example, Public Health England anticipates a significant increase in reported cases of Legionnaire’s disease when employees return to their usual places of work, as restrictions have meant that many buildings have been left unoccupied (or minimally occupied) for months, potentially leading to a build-up of legionella in stagnant water. For more information on this topic, look out for our upcoming article on reducing the risk of a Legionnaire’s outbreak after lockdown.
Businesses should share the results of their risk assessments with their workforce and relevant stakeholders. If possible, businesses should also consider publishing the results of their Covid-19 risk assessments on their website. The Government has made clear that it expects businesses with over 50 workers to do this.
Businesses that identify risks and take all appropriate steps to address any issues that arise will be in the best possible position to resume operations as soon as they are permitted to do so.
3. Returning to work: minimise risk
The Government has reiterated that we cannot simply pick up where we left off, and it is clear that adaption will be key as businesses slowly resume operations.
Where it is not possible for employees to continue working from home, employers should use their risk assessments to identify suitable and sufficient measures to control the spread of the virus. Subject to their risk assessment and the latest guidance, organisations may wish to consider some of the following measures:
- A phased return to the workplace with staff being brought back in appropriately-sized ‘waves’;
- Staggered working hours and break-times to facilitate social distancing and minimise the risk of overcrowding;
- Limit use of shared equipment;
- Keep staff and customers safe by installing protective screens at till-points, reducing stock, providing hand sanitiser and restricting how many customers can enter premises at any one time;
- Contact staff in advance of their return and assess whether they are fit to return to work. For example, to assess whether it is safe for an employee to return to work, employees could be interviewed over the telephone to assess whether they are shielded or vulnerable or live with anyone who is. This interview may also provide an opportunity to inform employees of the control measures that will be put in place;
- Rearrange work areas or where it is not possible to move workstations further apart, it could be arranged for people to work side by side or facing away from each other rather than face-to-face;
- In shared offices, avoid hot-desking as much as possible and/or implement a strict system that prevents workers from using desks that have not been cleaned since they were last occupied.
The Government advises that employers should not encourage their employees to use personal protective equipment as a precautionary measure unless they are operating in a health and social care setting or are responding to a suspected or confirmed case of Covid-19. This advice is based on the Government’s view that personal protective equipment will provide very limited additional protection unless the employee is working in a setting where the risk of Covid-19 is very high.
If an employer’s risk assessment identifies that personal protective equipment is required, this must be provided free of charge to any relevant employees and properly fitted for each individual.
The Government’s advice states that the wearing of face coverings may have a role to play in preventing the spread of infection by individuals with Covid-19 but who are not displaying symptoms. Some employees could choose to wear a ‘face-covering’. Face coverings should not, however, be used as a replacement for other measures to control the risk of Covid-19, such as increased handwashing. While face coverings may reassure returning workers, employers should ensure their use is safe in the context of the work environment. For example, coverings should not be used where there is a risk of the material becoming snagged or stuck in a piece of machinery.
The Government has released specific guidance regarding how different types of workplaces can work safely during the Covid-19 Pandemic, which can be found here.
4. Consult with employees and their representatives
This is an uncertain time for employees, who in many cases will be apprehensive regarding returning to work. Employers should ensure that their employees receive transparent information regarding the measures that will be taken to mitigate the risk of infection.
Similarly, employers should involve any union safety representatives and/or representatives of employee safety in their plans to facilitate a return to work. For example, an employer may invite representations regarding control measures from representatives or invite them to inspect the “adapted” workplace. Consulting with representatives can help to ensure consistent messages are conveyed to staff and can assist in boosting staff morale and commitment to the measures in place.
5. If in doubt, go back to the basics
With guidance seemingly changing on a daily basis, we appreciate that it can be difficult to keep up with what the latest regulations are, and harder yet to differentiate between rules and suggestions for best practice.
We recommend signing up to the Government’s update service, which sends out daily emails to subscribers with links to all new and recently updated guidance. Where guidance has been updated, the daily update sets out what has changed.
Following the best practice outlined in the Government’s guidance will normally be a strong indication that an organisation is complying with the law. However, it remains for organisations to ensure that they act in accordance with the safety legislation relevant to their operations and their own risks assessments. Reflecting this, the Government’s guidance often expressly states that the advice given must be considered by organisations and applied in a manner appropriate to their specific operations and stakeholders.
For more information
Should you need specific advice on resuming operations post-lockdown or have any queries about health and safety in general, please contact our Regulatory team.
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