COVID-19: Responsibility to keep workers safe passed on to ill-prepared employers13 May 2020
Professor Paul Almond, an expert in workplace safety regulations in the School of Law at the University of Reading, said:
"The Government's approach to workplace health and safety as a component of its Coronavirus response, as underlined at yesterday's COVID-19 briefing, was rooted in the risk-based approach to regulation taken in the UK in recent years, and highlighted some of the issues with this model.
"This risk-based approach is reflected in the guidance provided - issues for attention are identified, suggestions are made (e.g. that workstation furniture be moved apart and floor markings be used to set out the 2m social distancing requirement), but the job of deciding what is needed, and how transmission and exposure risks can be managed, is left to employers to work out.
"The Health and Safety Executive, the UK safety regulator, whose chief executive was present at yesterday's briefing, has provided risk assessment guidance to support this, and the Government has issued more focused guidance for eight sectors or industries thought to be at particular risk, including construction, retail, and factories. It does not say what employers must do - it says what they ought to consider.
"Responsibility for implementing this is passed on to employers, who have to consider which elements are relevant for their workforce, utilising their knowledge of their workplace risks, but as the guidance points out, COVID-19 is a different risk to the ones the vast majority of employers are used to managing, and so they cannot necessarily draw on previous knowledge.
"Many sectors that would have been viewed as 'low-risk' workplaces a few months ago (retail, offices, catering) are now, by virtue of the virus, 'high-risk' workplaces, but are not used to managing risk at this level of seriousness. And employers will need to move fast to implement what is suggested - the announcement was made on Sunday, and the guidance issued on Tuesday, ahead of a potential return to work today (Wednesday).
"Health and safety laws frame provision in terms of ensuring safety 'so far as is reasonably practicable', and what is 'reasonably practicable' can be a sliding scale, influenced by cost, capacity, circumstance, and necessity of actually doing the work. Taken together, this does not offer any guarantee that an employee will not be exposed to COVID-19 transmission risks (they do not have to be removed, rather, 'managed' if they cannot be avoided). Instead, it is a framework for reducing exposure risks to a tolerable level.
"Even though a 10% increase in the budget of the HSE was announced in order to support the shift to safe COVID-19 working (reversing a small part of the budget cuts made during the era of austerity), this is unlikely to result in an interventionist response; HSE tends to rely on measures other than enforcement, and does not operate as a workplace 'police force'.
"There was a clear departure between Minster Alok Sharma's vision of workers asking HSE to 'take action', and the HSE representative's own reference to 'receiving complaints' a few moments later. The latter implies a much lower likelihood of an active response than the former.
"It is interesting to see how central the idea of consultation with employees is to the Government's vision of safe COVID-19 working. Employers were advised to talk with employees about the risks and how to manage these, and employees were advised to take up any problems of unsafe conditions or non-compliance with their employer. This is probably an optimistic view - the UK is historically quite poor at implementing effective worker consultation, and trade unions are not empowered or represented in many of the sectors that are going back to work.
"The current Government has also been quite hostile in recent years to things that smack of a 'health and safety culture' or labour organisation, and many employees might have less confidence in their employer to respond constructively than the Government does.
"The emphasis that has been placed upon ‘high-risk’ sectors, the 'responsibilising' approach taken towards the fulfillment of legal duties, and the reliance on reasonable practicability assessments to guide provision, all contribute to a model which is vulnerable to being undermined by the demands posed by the COVID-19 pandemic.
"In reality, many difficult decisions will have to be made, and lots of these will not satisfy everyone affected by the risks in question. A cautious approach, an incremental return to work, and 'learning on the job' are likely to be the best way forward, rather than 'business as usual'."