How To Maintain Compliance Whilst Considering The Ongoing Risk Of COVID-19

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In this article, specialist health and safety solicitor Julia Thomas and former HSE Principal Inspector Melvin Sandell highlight the obligations which business needs to meet in maintaining compliance whilst considering the ongoing risk posed by the current pandemic.

The HSE has been regularly updating us on the measures it expects employers to put in place and maintain to protect workers during the Coronavirus pandemic.

From its statement with the TUC and CBI, to the appearance of its Chief Executive on the Downing Street Daily update on 12 May 2020, the HSE has made it clear that it will consider enforcement action against those employers not adhering to the relevant Public Health England COVID-19 social distancing guidance where this failure is brought to its attention. The potential sanctions range from advice through to the issuing of prohibition and improvement notices, and prosecution. Other health and safety regulators, such as the local authority EHOs, are likely to follow suit.

The general duties under the Health and Safety at Work etc. Act 1974 are well known. Many prosecutions under the Act are based on a breach of either sections 2(1), and/or 3(1) which are the generally worded duties to take reasonably practicable steps to ensure the health, safety and welfare of staff and others, which in the mind of a prosecutor, cover a multitude of sins. In many cases a breach of the general duties is often founded on or evidenced by breaches of health and safety regulations, of which there are many and in some cases are pursued as separate additional breaches. For those regulated by the HSE, compliance with the Act and with regulations made under it, is key to avoid a significant fees for intervention invoices that are likely to be speedily issued to help make up the deficit in HSE’s income during lockdown and if not fees for intervention, remember that the potential fines which the Courts impose on sentencing are substantial and must meet the sentencing guideline objective of  being, Sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation Some of the key obligations which businesses need to bear in mind when assessing the risk to workers coming out of lockdown are detailed below. In the race to assess risks from COVID 19 before reopening, it is important not to forget that these obligations continue to extend to all aspects of your business.

The Management of Health and Safety at Work Regulations 1999

Also fondly known as “the Management Regs”. Businesses must remember to:

  • Carry out a suitable and sufficient risk assessment of the COVID-19 infection risk from your workplace (Regulation 3). This should be kept under review. Government guidance changes sometimes daily and the Regulators will expect risk assessments to follow current guidance.
  • Plan, implement, control, monitor and review a safe system of work including preventive and proactive measures identified as required by the risk assessment (Regulation 5). The regulations require the system to be written down where the business has more than five employees. Our advice to any business would be to document its risk assessment and system of work regardless of the number of employees it has as evidence of having taken these steps.
  • Businesses should ensure employees and others working on their sites have been provided with the most up to date information on the risks associated with the undertaking, and the steps they must take to comply with the system in place and play their part in helping to reduce or avoid the risk of contracting or passing on coronavirus (Regulations 10 and 12).
  • Businesses appoint members of staff to assist with the implementation of the safe system of work which considers the risks from COVID-19 (Regulation 7).

Certain provisions under the Workplace (Health, Safety and Welfare) Regulations 1992 should also be considered during the risk assessment process for their relevance to assessing the risks in the workplace.

The efficient maintenance of the risk controls and measures to mitigate the risk of COVID-19 transmission would fall under Regulation 5. Businesses are also required to keep the workplace including the furniture, furnishings fittings sufficient clean under Regulation 9Regulation 5 also includes a requirement to keep the workplace clean. The workplace should also be sufficiently ventilated (Regulation 6), so if using an air conditioning system ensure this has been checked is in working order and serviced in line with the recommended schedule.

  • The reconfiguration of workspaces to allow the implementation and observance of the government social distancing measures (the current 2 metre rule), falls under Regulation 10. The organisation of traffic routes for persons to circulate safely within the workplace whilst adhering to the current social distancing guidance for example setting up one-way systems such as those found in some shops, this consideration falls within the scope of Regulation 17.

We have been continuously told that regular hand washing is one of the most effective measures to contain the spread of COVID-19 therefore the provision of sufficient hand washing facilities (Regulation 21), is key. You may need to consider the provision of pop up facilities in certain workplaces to encourage and allow worker to wash their hands regularly. As well as providing these facilities they should well maintained. All such facilities should have a continuous supply of hot and cold or warm water, soap, disposable towels be ventilated and well-lit and be kept clean.

Those carrying out or contributing to the risk assessment process should be mindful of the hierarchy of control, risks should be reduced to the lowest reasonably practicable level through the introduction of measures in the following order of priority:

  • The elimination of the risk, the physical removal of the hazard.
  • The substitution of the materials or processes used or the replacement of the hazard.
  • Engineering controls, methods to isolate workers from the risk.
  • Administrative controls, changes in the methods employed to carry out the work and
  • The introduction of Personal Protective Equipment (PPE) to protect the worker.

PPE should be considered as a last resort to control the risks to workers in line with above hierarchy.  Face coverings and masks which are widely available do not comply with respiratory protective equipment requirements and provide limited protection to the wearer. If businesses are at the point where consideration of the use of PPE is needed the requirements under the Personal Protective Equipment at Work Regulations 1992 will need to be considered.

These are hard times for us all and yes, we all wish to keep business running (and indeed are being actively encouraged for the sake of the economy to keep business going) where possible. However, it is worth keeping in mind the potential for HSE/LA enforcement now that we are coming out of lockdown is real. There is no time limit on criminal proceedings that may be brought in relation to a failure to identify and manage risk, under the Health and Safety at Work etc Act 1974 or under many of the related health and safety regulations.

If you have not already been actively identifying, and managing additional risks to staff and others which result from them working in or supplying to your business while the possibility of infection remains high now is the time to do so. Finch Consulting can help you with that process. We can help to get you on your way to ensuring your working practices are in line with current government guidance so you do not find yourself on the receiving end of a prohibition notice which can immediately suspend your operations and leave you with a criminal record, or worse still, a prosecution with the risk of a substantial fine if convicted.

Finch Consulting’s unique combination of industry experts in occupational hygiene, engineering, behavioural compliance and its health and safety lawyers can assist with the review of Covid-19 prompted policies and procedures to help ensure compliance, as well as assisting you if you face a regulatory investigation.

If you would like assistance with the assessment or review of your safety systems please get in touch with one of our experts below where we can explain what we can do to help in more detail and find out more about you and the needs of your business.

For more information contact:

Julia Thomas, Health and Safety Lawyer – Julia.thomas@finch-consulting.com

Melvin Sandell, Senior Consultant – melvin.sandell@finch-consulting.com