Regulatory Team E-Bulletin

Can More Guidance Achieve a Safe Balance?

Recent events, especially those in the last two weeks, have brought a seemingly endless list of new challenges. These challenges inevitably result in the need for balance to be identified between competing issues.

There can be no doubt that the messages “Stay Safe” and “Protect the NHS” must take a priority, but close behind that, is the potentially conflicting challenge of keeping the country going. We are all aware now that the list of key workers includes those involved in the food industry and all associated supply chains; work that clearly cannot be done from home. But in addition to those who are essential to the nation keeping body and soul together, we have those who play their part in keeping the economy moving, underpinning the financial stability that has to be protected for the short and long-term benefit of the country. It is against that backdrop that guidance recently published by the HSE includes these words “Keep your business open” and, with the exception of non-essential shop and public venues, the message stresses that “it is important for business to carry on”.

Now, whilst there are a host of employers who can identify ways in which they can provide their products and services with employees working from home, this is simply not possible in many sectors. Employees need to be at their place of work to get their hands dirty and therein lies the challenge.

The Coronavirus poses a significant risk to the health and safety of these employees and existing health and safety law requires that every employer assesses this risk and puts in place such measures as are reasonably practicable to tackle them.

The HSE guidance makes it clear that employees need to comply with Public-Health England’s guidance on measures to control public health risks, including social distancing. The HSE go on to state that where employers are not taking action to comply, it will consider action aimed at improving this, including the issuing of enforcement notices. Unfortunately, having held this stick aloft, no practical guidance is offered as to how this is to be achieved.

Established tools will have to be used to confront this new risk. Risk assessments will need to be carried out in the planning of significant changes to the normal ways of working. Crucially, this will involve confronting imbedded working practices, not with a gradual education programme but with swift and robust enforcement.

Challenges exist in a wide number of sectors, where contact with colleagues and the public is part of the day-to-day work. Construction is one obvious example of where difficulties inevitably arise. The media has been awash with images of construction workers operating in close proximity to one another, but other sectors face similar challenges and today (8 April) the news gives a figure of nine bus drivers, across the UK, who have died from Covid-19.

On 7 April 2020 the Department of Business, Energy and Industrial Strategy issued sector-specific guidance, which covers those sectors where working at home is impossible, including construction, manufacturing, farming, fishing and waste management. There are common, repetitive themes to the advice issued across these and other sectors; however, staying with the construction industry, I would, for example, question; the possibility of workers washing their hands before and after every use of enclosed machinery. Likewise, how often one can expect this to be done on board a fishing boat. That stated, this new guidance does provide a starting point for those that still need to respond to the new threat, whilst keeping their businesses afloat.

There are also growing bodies of material from sector groups such as the Construction Leadership Council, which are in principle full of good suggestions but are equally challenged by the practical realities of the work involved.

In addition to these observations, employers across a large number of sectors are now suddenly responsible for the health and safety issues arising for their employees from the conduct of work at home. New risks will also need to be assessed for these workers – the challenges continue to mount.

Of course, these are still early days, but some fundamental changes will be required for all businesses that are endeavouring to stay trading, before compliance with Public-Health England guidance can be achieved. Whilst the library of advice from the HSE and sector-specific organisations is growing, the challenges of this crisis are such that it may not be too long before allegations are made that employers have not done all that is reasonably practicable to ensure the health and safety of their employees.

Alan Fuller

Practice Areas: 
Regulatory