Since 19th July we have moved fairly rapidly from a society dominated by face coverings to one in which they now seem in many places to be the exception and not the rule. Where this happens in an environment in which you have employees (and visitors) this could be a breach of an employer’s statutory duties under sections 2 and 3 of the Health and Safety at Work etc Act 1974, to take reasonably practicable steps to ensure health and safety. This could have serious repercussions including possible prosecution.
In this vodcast Finch Consulting’s Managing Director Dom Barraclough discusses with specialist Health and Safety Solicitor Sue Dearden the now frequently misunderstood but nevertheless ongoing obligation on employers to assess and manage the risks of COVID coming into and being transmitted across and from any workplace, and what steps are likely to be assessed by a Judge as reasonably practicable both now and going forwards.
Transcription:
Dom:
Hello, I’m Dom Barraclough the Managing Director of Finch Consulting. I have my colleague here Sue Dearden, Head of Legal Services at Finch.
I am very interested not just from a Finch perspective but from a client’s perspective on how we manage the ongoing risks from COVID.
To give COVID deaths some UK context, the weekly deaths attributed to COVID have risen week on week in the last 9 weeks and currently average around 100 a day [correct at time of filming].
This means the UK is currently losing to COVID each and every 48 hour period, roughly the same number of staff and members of the public killed annually by workplace accidents which is quite an amazing statistic really. That means, there are more lives lost every day to COVID than there were through the Grenfell Tower fire or through Hillsborough.
Yet my perception is that the removal of the Government-mandated measures has been interpreted as a reason by many to remove or ignore the COVID control measures we’ve got so used to, and which had been put in place by employers and of course a lot of Finch clients, including Finch ourselves.
Sue
In some senses, we have become so inured to the numbers that they cease to have significance to people.
Dom:
I think if we were having that many people killed on train crashes every day we’d have to rethink our commute a little bit wouldn’t we?
Sue:
Yes, that would make you stand up and take notice.
It’s a really curious feature of COVID that so many people can be infected and ill and dying, yet there seems to be a number of people out and about not taking the risks seriously.
And the reason for that is, I think, fuelled by the press which heralded 19th July as being “Freedom Day.” People have assumed that the lifting of mandated restrictions in some way means that the restrictions are no longer relevant – that they don’t have to use them.
Dom
So the more binary approach to life – it‘s just switch off.
Sue:
Yes – but that is not the case. The risk of infection from people in the workplace and to others is no different to any other health and safety risk in many ways, and an employer is not only entitled but obliged legally to assess the risks to health and safety to their staff and to others who may be affected by their workplace and workplace premises – to assess those risks and then control them through a risk management process.
So that needs to be done in relation to COVID just as you would with any other risk.
Dom:
So, it’s time really to start thinking of COVID as part of the other whole profile of different hazards that a workplace has to cope with, not just as a standalone thing.
Sue:
Absolutely, and stop thinking of it in terms of controls that have been removed and therefore no longer have relevance, or that employers can no longer require that they are used. That of course is not the case.
Dom:
Yes, it’s interesting because it does seem to have gone the wrong way round doesn’t it? We’ve removed the controls but we’ve still got the hazard. Whereas what you should actually be doing is removing the hazard. Then you can start to bring down your controls and remove them. But as you say, the controls have just gone.
Sue:
One thing I find very curious about public perception and the way that people are behaving is that you tend to accept controls in a workplace in other areas. The Government doesn’t mandate that everyone must wear a hard hat all the time. They don’t mandate that you have to have hearing protection all the time or steel cap boots or PPE or any of the other controls that come in. It leaves it to the employers to identify when those controls are needed and when they are necessary because of the risk.
The risk from COVID is of course different in different circumstances. The risk is different when you are outside, the risk is different if you can remain distanced, the risk is different if people are vaccinated — the list is almost endless. There are too many variables for the Government to say everybody must wear masks or do this or do that except in these circumstances… because they would never finish that job. This is why they’ve lifted the mandate and turned it onto employers to assess and manage and enforce the controls that are appropriate to their environments.
You can try and manage the situation as far as who is coming into your premises, who is working on your premises, who is visiting your premises. You are obliged to look at those risks and control those risks applying the principles from the hierarchy of controls.
The first obligation is to think about the elimination of the risk which in practical terms with COVID you can’t do, but the obligation is to take reasonably practical steps to try and achieve that. That may mean insisting on vaccinations. It may be that you insist on testing. There are different ways of trying to eliminate COVID from the workplace
Dom:
As an employer when you’re doing your risk assessment you almost have to consider the worst case for your workers at home to prevent it coming into the workplace. Although you have no control over the people at home.
Sue:
You’ve got to assume they might be coming in infected yes. I think that’s absolutely right. You do what you can to minimise that risk and do your best to minimise the risk of spread when they’re in the workplace.
I’ve seen a lot of notices around saying it is up to you whether you want to wear a mask [face covering]. Either a mask is a control measure that’s needed or it isn’t. If it’s an appropriate control measure it should be clear, stated and enforced You don’t just leave it to people’s discretion. You wouldn’t just say to someone, wear a hard hat if you fancy it on this construction site – you just don’t do that. If it’s appropriate then you have it as a rule, and you enforce it.
If employees are resistant to following the controls because of “Freedom Day” then just remind them of section 7 of the Health and Safety at Work etc Act 1974. If an employee fails to follow an employer’s reasonable control measures then they are vulnerable to prosecution themselves – they are in breach of section 7 which is punishable by imprisonment or a fine. It doesn’t take a very bad breach to reach the custody threshold, so prison is a realistic possibility when there’s a breach.
Of course, you have a different position with visitors coming in. If you’ve got a restaurant or a theme park or somewhere you have lots of visitors, you do though have the right to refuse them entry if they are not complying with your rules. If you had put walkways in place saying, “construction work is going on in this part you’ve got to follow that walkway”, you’d expect people to follow that control measure. If they climbed over those barriers to go and have a look at the diggers you’d be getting them off your premises soon enough. Just manage the risk as you would any other risk.
Dom:
It’s very interesting isn’t it because it’s all about how over this period, communication has been given to the general public, to workers and you can appreciate with a moving target how difficult it can be to keep up.
This may be a reason when we came to “freedom day” that a lot of our clients decided to keep with the current control measures and still do now.
Sue:
Not all though
Dom:
No not all, there are exceptions but we’re certainly advising all of our clients to look at your risk assessment, revise it but actually, some of the revisions they are doing are not significant and they are keeping to their current measures.
Sue:
A risk assessment has to be fluid because what we know about Coronavirus is changing all the time and so for example with the double jabs we had the conversation about “jabs for jobs” whether it was justified or whether it wasn’t. I was very much an advocate at the beginning of insisting on two jabs. I’ve moved from that position in the sense that there may be instances where I think that is entirely appropriate but it may be limited to care home environments where people are having very close contact with very vulnerable people. But for other environments, I worry a bit that the fact that people have thrown off the controls or appear to in many cases have thrown off the controls and people who are double vaccinated might be just a little more gung-ho about the risks and then become a higher hazard because of their behaviours.
People who are double vaccinated are thinking “ I catch it – and I might” (as increasingly the evidence is that you might) “I’m not going to get it so seriously”. But actually, if you don’t get it so seriously or if you don’t display symptoms but you are infectious, does somebody who is double vaccinated then find potentially they don’t take the symptoms so seriously? Do they test soon enough because they don’t want to be isolated if they find if they do have COVID on the basis “it doesn’t affect me so much, so do I need to worry about it?” They then come into the workplace and spread the infection. Whereas somebody not vaccinated might be more cautious and at the first sign of any ill health might be testing more and be prepared to test more because they feel they are potentially more vulnerable.
Dom:
In your risk assessment, you therefore probably can’t take account of the fact of how many people have or haven’t got double vaccines then?
Sue:
I think you can take account of vaccinations if you know that people have been jabbed, but it might be prudent now to be cautious about people being less cautious because they are vaccinated and taking account of that as part of the risk assessment.
Dom:
So, this is becoming more a behavioural thing,
There is a misconception amongst some I believe where it feels as if the double vaccine is a shield. Effectively it’s not – it is just mitigation isn’t it? It is not a prevention it’s mitigation. If you do get it hopefully you will be less ill. The message that was quite clear in lockdown is that we are trying to stop people from going into our hospitals where we can’t cope with it. You may have, I certainly have, got friends who have COVID, who are ill and have been double jabbed but they’re not in the hospital. They feel poorly though.
Sue:
Not all of them. Some of them don’t feel poorly at all but have done tests because they have been pinged and find that they have got it but meanwhile have been coming into the workplace.
My point is that somebody not vaccinated might have done that test sooner. It is quite interesting,
Something somebody has raised with me is that if we have “jabs for jobs” do you end up then saying people get flu every year with some dying so do we need to have those jabs every year as a condition of employment? With flu, about 30,000 people die each year in the UK compared with approx. 132,000 who have died from Coronavirus – it is clearly different.
Flu also predominately kills the elderly, over 75’s, who make up much less of the workforce. So as an employer, you might be less concerned with flu than with COVID which increasingly impacts everybody of all ages and those at work in particular.
Conversely, I have read recently of a concern that flu is going to be a bigger issue this winter than COVID perversely because last year there was hardly any flu because everybody was locked down and staying at home so it didn’t spread so we’ve lost some natural immunity to flu through that. It may be that it’s a bigger issue than we think.
Dom:
It’s very interesting isn’t it Sue because as we approached “freedom day” other diseases did become available! It seemed for a long time that COVID was the only thing available, but we’ve got flu, tummy bugs and even just the normal cold. It’s going to be interesting over the next few years how this rolls out through society. An interesting point is that although we are talking about health and safety legislation here, talking to a couple of our food clients, they acknowledge they’ve got duties under the Health and Safety at Work etc Act, but what they also say is that if they lose many more people they are not going to be able to have a business because they can’t make product. One of their prime drivers for putting and keeping measures in place is that they just don’t want to lose any more people – they’ve got to keep going.
Sue:
That’s an economic prime driver behind having the double vaccine – now the rules have changed though you don’t have to isolate if you’ve been pinged when symptomless.
Dom:
As you say that’s the sort of economic balance with health and safety, and that’s a very real driver. I mean we’re not here to talk about Brexit and all of those things but it has been a bit of a perfect storm hasn’t it in places, so employers are under quite a bit of stress and strain to get this right I think.
Sue:
Going back to risk assessments Dom, obviously, there are a host of controls that you need to be thinking about; distance, face coverings, hand sanitisers and all those sorts of things. We’ve talked briefly about vaccinations being part of the legitimate control measures. What’s your feeling about testing and requiring employee and visitor testing?
Dom:
I’m a big fan of it. I like the fact that we have the two-tier system, the lateral flow test and the PCR test. My wife is a teacher, she has to test regularly, twice a week. We’ve put testing into The Nest here at Finch, twice a week for the people who work in the office all of the time and also for people who are coming in to have a test. We have also got test kits downstairs in reception if they forget to do a test beforehand, so they can sit and wait 20 minutes for their result before having contact with anyone.
Sue:
And get booted out very quickly if it’s positive!
Dom:
Exactly. Also, my son plays high-level rugby, and to keep that sport going they’ve been doing a lot of testing to make sure that sort of cohort is there. That works really well.
Sue:
There doesn’t seem to be the resistance to testing that has been in some quarters to jabs. So, in some ways, if you do have people who are resistant to being vaccinated they can be asked to do the tests.
I think that all employees should be asked to do tests twice a week – that’s what the Government recommends. Every three to four days you do a lateral flow test and then if you get symptoms or if you have a positive test you follow it up with a PCR, don’t you.
Dom:
You do, and to be honest, I think the Government has done a great job at making these available. You can walk into town, you can go to some supermarkets and pick up a whole pack of the lateral flow tests and you can very easily book yourself onto a PCR. I’ve known a number of people who have had the PCR’s and got the results]well within the 24 hour period. I think it just provides confidence, as you said earlier if you’ve got a vaccination it doesn’t mean to say you haven’t got Coronavirus. We’ve got some people who are ill, but we’ve got some people who are just asymptomatic so how do you pick that up? I think it just provides that extra level of security.
Sue:
To me, it’s going to the first level of control on the hierarchy of controls where the obligation is to eliminate risk as far as reasonably practical. It doesn’t guarantee that somebody won’t get through who is infected, but it’s as good as I think you can get.
Dom:
I’ve thought about testing as far as the reasonably practicability requirement is concerned -balancing risk against the time, cost, and trouble to mitigate it. There’s hardly any cost associated with testing, it’s not really much trouble and it doesn’t take much time. So, if you are looking at how reasonably practical it is, it just is, isn’t it? You can’t argue any other way. I understand that certainly at the beginning there were businesses out there wanting to charge £150 for a test, but I think the Government moved quite quickly in on that and made them readily available.
Sue:
Yes, all the lateral flow tests are free and the PCR tests are free when they’re needed.
I think we have probably covered everything that we are going to cover. I think the key messages here are that employers must risk assess COVID. They must risk assess for the environment in which they are operating, in which they are having staff working and visitors and contractors coming in. They must apply appropriate controls depending upon the level of risk for the environment in which they work. There is a re-education piece I think in which employers have got a role to play. The Government guidance said effectively we’re lifting the mandate for controls but doesn’t say those controls are going out of the window. Those controls are still available. It is still recommended, just not mandated by the Government that you wear face coverings when you’re in an enclosed space when you’re close to people, and there isn’t ventilation. Don’t be afraid to have those controls and enforce them.
Dom:
I think my takeaway from this Sue, from a Finch point of view, is that we’ve run the COVID hazard and other hazards slightly separately in two forms of risk assessments, but I think we need to integrate those together as COVID isn’t going away any time soon. It’s another hazard on our list, so we should integrate it all together now.
Sue:
That’s a good point. I’m sure there’s a whole range of views on the topic though and if anybody has got any different views we would be very interested to hear from you. If anybody needs any help with their risk assessments that is something we can help with as well.
For any assistance on COVID control measures in the workplace, please don’t hesitate to contact [email protected] or 01530 412777.
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