Covid-19 – Returning to Work – Meeting your legal health and safety obligations

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Also review our related article on ‘how to effect a safe return to work’ here.

Key points:

  • HSE receives 10% increase in its budget to support employers in ensuring a safe return to work
  • Government guidance advises businesses to publish Coronavirus Risk Assessment on their website, with businesses who have over 50 workers “expected to do so”
  • HSE will do spot inspections of workplaces to ensure employees are working safely
  • HSE will not hesitate to use their powers, including the use of enforcement notices, prohibition notices and in extreme cases, criminal prosecutions

Financial support for the Health and Safety Executive

Alok Sharma (Business Secretary) announced at yesterday’s daily press conference that the Health and Safety Executive (HSE) will receive a 10% increase in its budget to deal with extra calls from businesses, as well as paying for more equipment and inspectors, if needed.

This announcement came following the publication of new government guidance issued in a bid to ensure workspaces are safe for the gradual return for workers.  Sharma re-iterated the basic principles of health and safety legislation, noting that “employers have a duty to keep employees safe in the workplace“. He advised employees being asked to return to work who have concerns about their safety to speak with their employer in the first instance, contacting the HSE if they have continued concerns.

Coronavirus Risk Assessments

Latest government guidance published on 11 May 2020, provides sector specific advice on how employees can safely return to work, with suggested measures to reduce workplace risk to the lowest reasonably practicable level.

A common theme is the requirement for all businesses to conduct a Coronavirus Risk Assessment. This will undoubtedly be key to allow businesses to demonstrate having in place objectively reasonable procedures to ensure the health, safety and welfare of their employees during the Coronavirus crisis, in line with their continuing legal obligations under the Health and Safety at Work etc Act 1974.

For those businesses with less than 5 employees, or for the self-employed, there is no requirement to produce a formal written risk assessment. However, for every other business the risk assessment should be written down, setting out specific risks and the measures implemented to minimise those risks.

The advice in the government guidance is that the results of Coronavirus Risk Assessments should be shared with employees and, if possible, it should also be published on companies’ websites. This advice is supplemented with the comment “and we would expect all employers with over 50 workers to do so” suggesting that businesses employing over 50 people who do not publish their risk assessment, will be subject to further scrutiny. The guidance documents also contain a poster that businesses “should display in your workplace” confirming that the government’s guidance has been complied with.

HSE to do workplace spot inspections

With the increase in their budget and wide ranging powers, Chief Executive of the HSE, Sarah Albon, was keen to stress last night that the HSE will ensure that workplaces set to reopen are “Covid-secure”. Despite government guidance about the publication of risk assessments (as set out above), Albon went further, stating “All employers must now carry out and publish risk assessment in consultation with unions and their workforces“.

The HSE have wide ranging powers to ensure duty holders meet their legal requirements under health and safety legislation, including the ability to turn up, unannounced, and inspect premises.  The message from Albon was clear – to ensure government guidance is being followed and employees returning to work are safe, spot inspections will be carried out to ensure companies are keeping people safe. A review of Coronavirus Risk Assessments will inevitably form part of the inspection process.

HSE will use enforcement powers to ensure compliance with health and safety obligations

Albon also sent a clear message about the HSE’s attitude to using their wider enforcement powers to ensure the government guidance around safe working is followed: the HSE will not hesitate.

Albon explained that HSE Inspectors have enforcement powers that can be deployed to ensure businesses take certain actions within a particular time frame (Improvement Notices) and prohibit certain activities from taking place where there is a serious risk of injury (Prohibition Notices). Breaching either of these enforcement notices is a criminal offence and businesses can be prosecuted if they do not follow the requirements they impose.

It is clear that the anticipated return to work of many employees now the lockdown measures have been relaxed, along with a significant cash boost from the government, has given the HSE a renewed vigour. The messaging yesterday demonstrates a strong commitment from the HSE to inspect and enforce health and safety legislation robustly during the Coronavirus pandemic and that they will not hesitate to prosecute those businesses who blatantly and maliciously do not follow the rules. Fines for non-compliance with safety legislation are theoretically unlimited so it is abundantly clear that employers must be aware of, and comply with COVID-safe practices as their employees return to work.