Tag Archives: employment law

COVID-19, employers and Government guidance

by Gordon Menzies

As the requirements to close premises and businesses of particular types are eased, the amount of governmental guidance for those business that can reopen (or will soon reopen) has correspondingly and substantially increased.

The starting point for any business is the gov.uk guidance produced by central government. The principal sets of guidance follow a set layout, beginning with a section dealing with ‘thinking about risk’, which emphasises the importance of carrying out a COVID-19 specific risk assessment, followed by a section which deals with ‘managing risk’ focused on reducing such risk to the lowest reasonably practicable level by taking preventative measures in order of priority.

Such an approach is uncontroversial and will be familiar to those involved in discharging the health and safety functions of an employer. The principle that risk assessments are not about creating large amounts of paperwork and that ‘the people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely’ is clearly acknowledged at this point in the guidance available.

However, the difficulty that arises comes from the sections that follow. Again, the pattern adopted is generally the same. There are a series of sections which deal with identifying who should go to work, social distancing at work and managing particular aspects of what happens whilst at work. The formulation that is used again and again is to identify sections of particularised control measures as ‘steps that will usually be needed’. This appears to go much further than the type of industry and HSE guidance which those responsible for health and safety within an organisation may be familiar. This is because what is proposed in the gov.uk guidance is the setting down of a detailed list of steps that would be expected rather than matters to be considered in all the circumstances. For example, in the gov.uk guidance for factories, plants and warehouses, steps that will usually be needed include providing additional parking or facilities, having more entry points into a building and changing systems for processing those who pass through those entry and exit points. These specific ‘steps that will be usually needed’ are repeated in other sets of guidance such as those for offices, restaurants and shops. However, such expected ‘steps’ can be potentially onerous and require measures that may in the circumstances not usually be needed at all. However, the formulation adopted in the Guidance tends to suggest that there is a presumption or expectation that such steps are to be taken and a business will be assessed by any enforcing authority accordingly.

It seems that one practical answer is for businesses, in tandem with carrying out a risk assessment as they would for any other specific risk, to create a separate compliance document based on the government guidance. The risk assessment would  identify the risks and the controls that are going to be adopted in the usual way whilst the compliance document would deal with the controls identified in the government guidance that are not going to be adopted. This document could be used to identify the various ‘steps that would usually be needed’ which are either not applicable or, if they are, to record why a decision has been taken not to implement them. Thus, a business will be able to demonstrate, at a glance, that the government guidance has been taken into account and why steps that would usually be needed are not, in fact, needed.

The difficulties with the guidance are compounded by the fact that there is also industry led guidance which has been adopted by government and published on its website which sits beside the gov.uk guidance. These do not always appear to be consistent with each other. Taking the guidance available for the hospitality industry as an example, the gov.uk guidance formulates control measures in terms of ‘steps that will usually be needed’ but then refers the reader to ‘fuller’ industry guidance. The industry guidance that is on the Department of Culture, Media and Sport website is that produced by UK Hospitality in partnership with the DCMS. However, on one reading, the industry guidance is actually much less prescriptive than the gov.uk guidance. Social distancing may be the best example of this tension. As with other areas the gov.uk guidance is firmly anchored in identified ‘steps that will usually be needed’ whilst the language used in the industry guidance is much more flexible; for example, it notes that social distancing ‘will be a difficult subject but below are a few thoughts on what could be applied…’ and ‘consideration needs to be given to how social distancing measures can be applied’ .

Thus, the problem for business is having to deal with two sets of guidance, one which may be more exacting than the other. The less prescriptive approach taken by the available industry guidance is arguably far more consistent with the general established principles in health and safety law, namely that the responsibility for identifying what control measures will usually be needed is actually for the business who knows its activities best. These principles are acknowledged in the introductory sections of the gov.uk sets of guidance but are apparently in a degree of tension with what follows in terms of ‘steps that will usually be needed’.

The prudent employer will, no doubt, wish to err on the side of caution and comply with the higher standard if there is a conflict. Producing a compliance document which shows that an employer has properly considered, if only to reject, ‘steps that will usually be needed’ will also go a long way to being able to demonstrate compliance. However, it is disappointing that a raft of guidance which is designed to assist employers may in some cases actually make their task more difficult.