Currently in Wales the message from the Welsh Government is that people should only travel to work if it is not reasonably practicable for them to work from home. However, please note that the Welsh Government have published a list of all businesses which must remain closed for now – these include bars and restaurants, hotels and leisure centres, etc.
As infection rates start to drop here in Wales, some businesses who have not been forced to temporarily close and whose employees are unable to work from home will begin to ask their furloughed employees to return to the workplace.
We have recently received a number of queries from employers with regards to employees returning to work and have considered some of the frequently asked questions below.
Please note that many parts of this article are only relevant for those businesses in Wales as Government advice with regards to returning to work in England is different. The latest Government Guidance applicable to Wales can be accessed here.
1 – Can an employer ask staff to return to work even if they are able to work from home?
In accordance with current Government guidance, employees should not be asked to return to the workplace unless it is essential and it is safe for the employee to return. Therefore, if an employee can work from home then they should continue to do so.
2 – What health and safety obligations does an employer have to comply with during the pandemic?
Set out below are some practical steps employers should follow to ensure they comply with their obligations.
Undertake a COVID-19 risk assessment
Before asking employees to return to work, employers must undertake a COVID-19 risk assessment tailored specifically to their workplace. The risk assessment will enable an employer to identify sensible measures to control the risks in the workplace. This requirement to carry out a risk assessment is applicable to all employers irrespective of their size. If employers have more than five employees, they must have a written risk assessment in place. If employers have more than 50 employees, the Government expects them to publish the risk assessment on their website.
Consult with elected employee representatives on the risk assessment
The Health & Safety Executive (HSE) has produced a helpful guide to help employers discuss and consult with employees in relation to working arrangements with employees. Keeping an open dialog with employees about the steps they are taking to protect the workforce against the virus is imperative and will mitigate any future issues. Initially check your health and safety policy as it may contain information on how you will consult with your workforce.
The HSE has also published this helpful short guide to working safely during the coronavirus outbreak.
Assess what needs to be included within the risk assessment.
Whilst not specific to COVID-19, the HSE provides a risk assessment template to help employers which serves as a good starting point.
Each risk assessment should be adapted to each business, using the appropriate workplace guidance for each particular environment. To assist employers in preparing the risk assessment, employers should consider the latest Government Guidance – it will assist in informing decisions and control measures.
The purpose of the Government guidance is to help businesses and other organisations understand what kind of reasonable measures they can take to ensure that persons on their premises stay 2 metres apart.
Assess the need for PPE/face coverings.
The Government has stated that COVID-19 risks should be managed through measures such as social distancing and hygiene, not through the use of PPE. Therefore, workplaces should not encourage the precautionary use of extra personal protective equipment (PPE) to protect against COVID-19. In the event that the risk assessment did consider that PPE was appropriate, which is unlikely for an office setting, employers would need to provide it free of charge and any PPE must fit properly.
There is a difference between face coverings and PPE. There are some circumstances when wearing a face covering may be marginally beneficial as a precautionary measure (although the Government notes that the evidence of the benefit of using a face covering to protect others is weak and the effect is likely to be small). In the Government’s view, face coverings are not a replacement for the other ways of managing risk. Employers should support employees in using a face covering safely if they choose to wear one but should not rely on them on as a risk management strategy.
3 – What if an employer fails to comply with its health and safety obligations?
The Government has indicated that the HSE will carry out spot checks. The actions the HSE can take range from the provision of specific advice to employers through to issuing enforcement notices to help secure improvements.
Employers should also be aware that there is a risk that employees may report employers to the HSE if they feel that the employer is not complying with the guidance. Employees may then be protected by the whistleblowing legislation and employers will need to take care not to subject these employees to any detriment as a result of the employee raising concerns with the employer or the HSE.
If you would like more information about any of the issues raised in this article or any other aspect of employment law, please do not hesitate to contact at 029 2034 5511 or employment@berrysmith.com.