On 18 May 2020, the Ministry of Housing Communities and Local Government (MHCLG) wrote to all social housing residents in England (residents).
The Coronavirus outbreak has forced all organisations to reconsider how they operate. The health and safety of employees and members of the public will be paramount in these considerations. For many organisations, this will mean balancing the risk of exposure to the virus with the risks of non-compliance with their other safety (and non-safety related) obligations. Organisations should take a pragmatic approach, reflecting what is reasonably practicable in these circumstances.
All employers have an obligation under the Health and Safety at Work Act 1974 to ensure the health and safety of their employees and people affected by their operations, so far as is reasonably practicable. Many organisations will also have additional safety obligations related to their sector. Health and Social Care Providers have obligations under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, including an obligation to provide safe care to service users. Housing providers have a range of obligations relating to the safety of their premises, including gas safety checks and the completion of risk assessments and remedial work required under fire safety legislation.
Almost all the relevant regulators are indicating that they will take a risk-based approach to any breaches (or potential breaches) of health and safety legislation, which takes account of the unprecedented circumstances and prioritises the most serious risks.
Organisations remain under an obligation to carry out a comprehensive risk assessment of their operations, balancing the risk of a task not going ahead with the potential for employees or service users being exposed to Coronavirus. Special consideration should be given to the vulnerabilities of staff and service users, whether this is due to their own health or the state of their home or work environment. For example, the need to carry out a gas safety check may be more urgent in an older property with a history of breakdowns and repairs.
As the outbreak continues and government guidance changes, it is likely that organisations will have to review how Coronavirus affects a wider range of safety obligations. For example, organisations should review their fire risk assessments in light of Coronavirus, particularly due to the increased risks of staff shortages and higher occupancy rates. Similarly, care providers will need to consider the mental health and levels of fatigue being experienced by their employees to assess the resultant risk to service users, as well as the employees themselves.
Based on these risk assessments, organisations should put in place policies, procedures and control measures to mitigate the safety risks associated with their operations and on-going tasks.
Many health and safety obligations are not absolute, meaning they only require organisations to take all reasonable steps or to act so far as is reasonably practicable, for example. Organisations should ensure they clearly document the measures they have put in place and the reasoning behind their implementation. It will also be important to document the challenges faced in seeking to comply with care and safety related obligations and what action has been taken to overcome them. In this way, organisations will be better placed to demonstrate that they have done all that is reasonably practicable, should their decision making be challenged at a later date.
Organisations should maintain an open dialogue with their regulators. Many regulators have actively stated that they wish to work with their providers to ensure safety is maintained throughout the outbreak. Organisations should be clear regarding the steps they are taking, and the difficulties being faced. It will also be important for organisations to continue to notify their regulators of incidents and breaches as per their standard practice. Importantly, organisations should also maintain a regular dialogue with their staff and service users; many of whom will be feeling especially isolated and worried. Organisations should encourage staff and service users to raise concerns about their operations, so they can reflect and adapt their approach.
Ultimately, these are unprecedented times, and sharing lessons and best practice between regulators, residents, service users, staff, industry bodies, advisors and competitors may be the most effective way to ensure high standards are maintained.
If you have any questions regarding this e-briefing or your legal obligations, please do not hesitate to contact Lorna Kenyon.
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