While some non-essential shops and public venues were required to close at a relatively early stage of the Coronavirus outbreak as part of efforts to restrict its spread, the Government accepts that not everyone is able to work from home. Guidance is in place to assist businesses that remain open to do so safely (1). Adopting the measures set out in the guidance will help employers to discharge their duties to ensure the safety of their employees and those others affected by their activities.
What measures should I take to ensure the safety of my employees and customers during the coronavirus outbreak?
Social distancing is key. A distance of at least two metres should be maintained between individuals wherever possible. This applies between workers (e.g. in factory settings and on construction sites) and between workers and customers (e.g. on retail shop floors). The guidance gives some practical indications of how that might be achieved. It advocates, for instance, use of floor markings set at two-metre intervals and regular announcements to remind staff of the need to observe distancing. It directs employers to consider splitting the workforce into teams and spreading out processes so that fewer teams need to be on the premises at any given time. For customer-facing businesses such as retail, the guidance anticipates the use of barriers at places of interaction (e.g. till points).
Guidance on staff canteens has been amended to allow those to remain open to provide food to workers where there are no practical alternatives. Businesses should consider first whether staff can bring in their own food or whether takeaway options are feasible. If those approaches are not viable, staff canteens can remain open and serve food provided that adjustments are made to reflect social distancing. That might mean staggering breaks so that fewer workers use the space at the same time and displaying notices promoting hand hygiene and physical distancing.
Companies are working hard to get this right. We see employers reassessing their workplaces and, for example, using floor and vertical tape to delineate two metre distancing on production lines, or reconfiguring rest areas by removing seating. If employers keep Government guidance under review and apply its principles to their settings, they will be taking steps to discharge their health and safety obligations. They should aim to be able to demonstrate that they have considered the relevant guidance, identified what practical steps they can take to facilitate physical distancing, implemented those measures and monitored how they work in practice.
What happens if my company cannot achieve social distancing for all our activities?
It’s important to note that the Government guidance acknowledges that there will be circumstances in which social distancing cannot be followed in full. This means that two metre separation is not an absolute rule that must apply in all cases and all times. It follows that a failure by an employer to put in place social distancing in the context of a particular work activity will not necessarily mean that the employer is breaching its health and safety duties. The legal position has not changed. It remains the case that employers must ensure the safety of employees so far as is reasonably practicable and ensure that they run their businesses so that non-employees are not exposed to risks to their health and safety so far as is reasonably practicable. The duty is not absolute; it is limited by what is reasonably practicable.
For these purposes, doing all that is reasonably practicable will include:
- considering Government guidance on social distancing;
- assessing how two metre distancing can be adopted;
- putting those measures into place; and
- reviewing their effectiveness.
If, in respect of a particular activity, social distancing cannot be followed in full, the guidance tells us that the employer should consider whether that activity has to happen - and, by implication, should stop doing it if it is non-essential to the business’ operation as a whole. If it is essential, employers should take all possible mitigating actions to reduce the risk of the virus transmitting between staff. The guidance gives some examples of what those mitigating actions might look like. For construction, employers are told to keep staff two metres apart as much as possible, to operate teams that are as small as possible and to try to use stairs rather than lifts or hoists. For logistics, where two metre distancing cannot be maintained, staff should work side by side or face away from each other while maintaining two metre separation where it is at all feasible. Adoption of mitigating measures such as these will assist the business that cannot achieve two metre distancing in the context of a particular activity to discharge its health and safety duties.
This guidance should be viewed alongside the legislation that has come into force to meet the challenge of COVID-19. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 required a range of businesses to close for a presently open-ended emergency period. Food and drink outlets are restricted to takeaway services. Supermarkets, off-licences, pharmacies and homeware stores are some of a limited number of businesses allowed to remain open. They do so subject to the social distancing measures described above. Guidance issued specifically for food businesses (2) provides useful interpretation of what social distancing means for retail outlets. It talks of use of floor markings at two-metre intervals, vertical signage directing customers into lanes, use of plexiglass barriers at tills and encouraging the use of contactless payments. These are the steps being taken by retailers to comply with their duty to ensure the safety of employees and customers. This guidance acknowledges that there may be occasions where the food production environment makes it difficult to follow social distancing guidance. This is a further indication that two-metre separation will not be viewed by regulators as an absolute rule of law. In those food production environments where it is difficult to adopt two-metre separation in every activity, employers are told to consider what measures can be put in place to protect the workforce. This requires a risk assessment to identify what can sensibly be done to achieve a safe operation – maintaining two-metre distancing where that is possible, minimising the extent of activity involving a lesser degree of separation and ensuring that other measures (e.g. hand hygiene) remain in place. Businesses should go through this risk assessment process and feel able to justify the working practices they have adopted.
Social distancing and Welsh businesses
Wales has gone further by legislating to require businesses that stay open (supermarkets, off-licences, newsagents etc.) to take all reasonable measures to ensure that two-metre distancing is maintained between people on the premises, to regulate entry so that two-metre distancing is feasible inside and to ensure two-metre separation in any queuing outside the premises. This means that, for Welsh businesses, the two-metre rule is a matter of law and not simply guidance. Enforcement powers are provided for and an offence arises if an employer breaches the two-metre rule without reasonable excuse.
There is also a requirement to have regard to guidance issued by Welsh Ministers and it is this that helps inform what ‘all reasonable measures’ means (3). Consistent with the England guidance, there is an acknowledgement that there will be cases where it isn’t possible to maintain a two-metre distance. The Wales guidance accepts that some tasks require two or more people to be done safely and that there are situations where workers need to travel together. What the guidance calls for is proportionate action where it is practicable to do so. The employer is being asked to think creatively; to achieve physical distancing wherever that is possible and to make other adjustments where it is not. There may, in effect, be little difference between the England and Wales approaches – Wales has created a specific offence in respect of workplace distancing but offences for breach of safety duties remain available to regulators in England by virtue of the 1974 Act and, in both jurisdictions, the published guidance will be an important reference tool in judging whether employers have done enough to deliver safety in a COVID-19 environment.
Businesses that can demonstrate that they are keeping relevant guidance under careful review and implementing appropriate control measures in their workplaces will be well placed to discharge their duties to ensure safety. It is worth adding that some of the physical distancing measures discussed here are likely to be part of the new reality for businesses that re-open their doors as restrictions are eased. Those businesses too should be planning to assess how their activities can safely resume as we emerge from lockdown and to determine what adjustments might be necessary to protect employees and customers.
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