Legal expert, Richard Yeomans of law practice Addleshaw Goddard offers businesses tips on returning to work safely and legally…

Following the latest BEIS guidance, many businesses are looking carefully at how they can bring employees back to work safely. The good news is that businesses that adhere to the guidance should find they are compliant with health and safety law. But what does this mean in practice?

Returning to work safely

There is no legal duty to provide a totally risk-free workplace and COVID-19 legislation is designed to be temporary. So it doesn’t change existing workplace safety laws but adapts the existing law on risk assessments.

For high-hazard sectors, like construction or energy, this will be familiar ground. They may find little needing change, other than social distancing, PPE alterations and enhanced cleaning. The greater impact will be on traditionally low-hazard workplaces like retail or offices.

For them, risk assessments have traditionally been a tick-box exercise. Now they will have to manage restrictions on circulation and may need to enforce social distancing, right down to taking away desks.

Flexible working arrangements and staggered hours may also become important. All risk assessments should be reviewed and recorded, but there is no legal requirement to publish them and it would be prudent to consider the reputational risk of publishing.

There is also the issue of travel. There has never been a duty on employers to risk-assess to-work travel, but this is likely to be an issue, and it would be wise to demonstrate flexibility and understanding.

Although the final responsibility remains with employers, they do need to consult employees when carrying out risk assessments, and it is important workers feel listened to. So a consultation process is central. Where there is a recognised union, their safety representatives have a right to be involved.

Employers will want to ensure unions are part of the process, as some have been vocal.Where there is no recognised union, there is a requirement to consult the workforce, either directly or through elected representatives.

Such representatives can be chosen through a simple ballot process, although it should be noted that once elected they are legally protected from any detriment caused by taking on those duties. It is also important they be given training (e.g. on legal guidelines) if the consultation process is to be meaningful.

Reengaging employees

Preparing employees for returning to work will require a lot of engagement. Employers will want to consider aspects like childcare, commuting, and personal health, especially for workers who are categorised as vulnerable. They will therefore need to collect information about obstacles to returning, and canvass opinion. This could be done either through confidential surveys or directly through line managers.

There will be practical aspects like when staff are to return, how they travel, and what adjustments are needed in workplaces ranging from additional hand-washing facilities to floor markings to enforce social distancing.

Many businesses will have issues over managing circulation, some may want to stagger work times, or have a phased return. Others will continue to have people working from home. All of this should be communicated clearly and openly from the start, and it may be worth sharing the most recent workplace risk assessment. Businesses and employees alike will need time to put necessary mechanisms in place.

Supporting vulnerable workers