The relationship between employee and employer and the perception of health and safety have fundamentally changed in the wake of the pandemic. Here, employment lawyer Richard Thomas and health & safety expert Mark Littlejohns discuss 5 ways employers can prepare for this new working environment and avoid legal pitfalls.
Richard Thomas (RT): Before the coronavirus outbreak, health and safety was often seen as additional “red-tape”, or perhaps a tick-box exercise. Now, employees returning to work after having been told by the Government to stay at home for their own safety will naturally have increased health and safety concerns. This will change the employee and employer relationship, requiring employers to adapt their management style and ways of working and thinking.
Mark Littlejohns (ML): This change will have come about, not so much by changes in health & safety law (which has always required employers to consider the safety of their staff and others), but through the pressure exerted by staff and customers who, due to their personal experiences and concerns, are demanding that standards of working are considered and improved where necessary.
RT: Employee perception is key, so employers will need to demonstrate that they take the health and safety of their workers seriously and will work with them to achieve a desirable safe workplace. Employers should be open and transparent with their assessments of health and safety in the workplace and be clear in their communications. As part of this process, employers should encourage and facilitate feedback and communications from their workforce.
ML: The Safety Representatives and Safety Committee Regulations 1977 and The Health and Safety (Consultation with Employees) Regulations 1996 require the employer to consult with employees on issues relating to their health and safety at work. Organisations who were already doing it may want to adapt their approach to the new circumstances. Those who were not, and who have dictated standards to their staff, need to set up and establish formal processes to facilitate this requirement.
RT: This new-age collaborative approach should enhance the employer’s leadership, not undermine it. Once their employer has taken their needs into account and has acted accordingly, employees will need to understand that they are contractually obliged to obey their employer’s reasonable instructions. Employers should be robust and fair when dealing with this.
RT: To ensure employee engagement and avoid Employment Tribunal claims when business resumes, employers will want to ensure their health and safety policies are clear, unequivocal, and up to date. To avoid any unnecessary mistakes or misinterpretations, employees will also need to know where they can find those policies, and what they say.
ML: This may include the introduction of a formal safety management system (such as ISO45001), which is assessed by a third party but demonstrates to staff and others the commitment of the business to establish and maintain suitable working documentation. Those in the supply chain may see this being forced upon them by clients who are looking for assurance that suppliers are doing things correctly.
RT: Coronavirus has not gone away, so protections around sick workers will also need to be particularly robust and well-defined. This includes mental health as much as physical health: employers should make sure that their employees feel able to stay out of work if they are sick, do not feel overburdened by workload, and do not feel a need or an obligation to remain in the office beyond their contracted working hours.
ML: Companies will need to formally integrate their health & safety structure into their organisation, treating it as importantly as other elements of the business such as quality, finance, etc. They will also need to determine whether they have access to competent advice for all the key risks affecting their day to day operations. It is going to be more important for senior members of the business to receive training in their roles and responsibilities with health & safety included within business considerations.
RT: Anyone who has had 26 weeks’ continuous service may lawfully request a flexible working arrangement from their employer, and it is hard to see how employers can reasonably refuse such requests for those who have successfully demonstrated that they can work from home.
Time will tell to see how respective sectors handle this, but we might be on the brink of a significant culture-shift away from the traditional 9–5 office-based working life, and into a much more fluid and flexible system. While in the short term flexi-furloughing may allow a gradual return to work for some staff, employers should take this wider culture change into account when planning for the longer term, after the Coronavirus Job Retention Scheme ends in October 2020.
ML: Employers have a duty to ensure staff working from home do so safely. This not only includes establishing a safe workspace, but also engaging with staff and managing their mental health. Considerations should include how workstation assessments are going to be completed and monitored to comply with the Health & Safety (Display Screen) Regulations 1992, whether insurance for Employer’s Liability covers work based injuries and health issues, whether work can be completed effectively from a remote location and whether staff have the necessary resilience or require additional help and support with their specific requirements.
RT: Employers will need to be flexible and accommodating of their workforce’s needs as they return to the workplace. They should listen to them carefully, or risk opening themselves to indirect discrimination claims. For example, if selecting for redundancy employees unwilling to return to the workplace due to childcare and other responsibilities; or requiring employees with specific health requirements who might be more vulnerable to COVID-19 to return to their place of work.
ML: Companies will need to introduce systems which allow interaction between staff and their line manager, who will be able to tailor the support to the particular needs of each employee. This may also require delivering additional training to line managers.
RT: As required by the Management of Health and Safety at Work Regulations 1999, employers will need to continue to undertake suitable and sufficient risk assessments, to identify the evolving risks to staff, visitors, and other third parties. Once again, organisations who have not previously complied with this requirement will be particularly under pressure to develop documentation which will satisfy staff, clients and the regulator.
ML: The contents of the risk assessment should not be generic in nature, but specific to the type of work being undertaken and taking into considerations those that are affected. There is no ‘opt out’ to this requirement and if organisations are unable to meet this requirement themselves, they need to seek external help and support (or train up existing member of staff) to ensure compliance.