Guidance on how to consider the best work systems for your organisation

Legal disclaimer

This guidance is the Law Society’s view on the legal challenges presented when considering how to arrange working systems while coronavirus suppression measures are in place. It is not legal advice. Many of the decisions organisations make will be based on circumstances specific to them. Many of the legal disputes that arise will be judged on the specific facts of the case. The purpose of this guidance is to help you to consider what is best in your circumstances and to highlight possible legal considerations. You may need to seek independent legal advice from an employment lawyer, especially if there has been a significant change to the way your organisation operates.

As the severity of the pandemic changes so will the obligations on and responsibility of organisations. You can keep up-to-date with the governments advice guidance. See the general government information about coronavirus.

Introduction

Reopening offices

Managing those classed as vulnerable

Managing the health of workers

Health and safety law and regulations

Other useful resources

Introduction

For as long as coronavirus remains a virus that is easily spread within our population, while also causing significant medical problems to a large group of people, working practices will need to be flexible.

Workspaces that used to be assumed safe, such as offices, are now considered places of danger – unless the right safeguards and policies are put in place. Mundane behaviours, such as commuting on public transport or making coffee in the office kitchen, have become risky endeavours.

All organisations should keep-up-to date with the trajectory of the virus. The government’s advice on how best to live with coronavirus will change. As the scientific knowledge grows, we’ll better understand what behaviours are best.

It’s possible at different times of the year there will need to be different levels of suppression measures. It would help the resilience of your organisation if you were able map out what actions might be necessary to negate likely problems, and how you operate may change as the national or local risk level rises or lowers.

For example, during the winter it’s likely that many people will have to self-isolate a number of times because the symptoms of coronavirus and the common cold are similar. This isolation may have to happen at short notice, so it might be best to ensure that all meetings have the option of virtual attendance, even if it’s thought that everyone will attend in person.

The purpose of this guidance is to help you understand how the legal framework could apply to managing workforces while coronavirus poses a danger to the public’s health, and to consider what long-term strategic approach is best for your organisation before adopting new work systems.

The guidance aims to alert the reader as to what laws and regulations are likely to be relevant to certain situations, but it will then be for organisations to interpret what their obligations are.

Neither employment law nor health and safety regulations were designed for a pandemic situation, though they both still apply to how organisations manage while suppression measures are in force. As these are unprecedented times there are no precedents yet as to how the law applies.

The guidance is designed to be relevant when the government deems the coronavirus alert level is at:

  • 5 - material risk of healthcare services being overwhelmed
  • 4 - a high or rising level of transmission
  • 3 - the virus is in general circulation

It’s advisable for organisations to understand what the different levels mean for the need to manage risk and to consider what changes might happen to their work system as the risk level either lowers or rises.

When deciding how to proceed you should be aware of government information on coronavirus and advice from the Health and Safety Executive (HSE).

Can we be liable if an employee contracts coronavirus at work?

Yes, potentially, but workers would have to prove that on the balance of probabilities it was exposure at work that led to them falling ill. To do this would likely have to include showing that the employer was negligent in how they managed the risks.

Employers have a broad duty of care to those they employ. This duty can include obligations to take practical measures to support the physical and mental health and wellbeing of workers, so the legal responsibilities an organisation has go beyond the narrow question as to whether a worker did or did not catch coronavirus at work.

The legal framework

The legal areas that need to be understood when deciding how to manage a workforce and work systems during the pandemic can be split into those that are specific to coronavirus and those that continuously apply to workplaces and staff management.

The former includes:

  • the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020
  • associated government guidance
  • specific requirements mandated by the devolved governments

The latter includes:

  • employment law practices
  • equality and discrimination law
  • health and safety requirements
  • General Data Protection Regulations (GDPR) which existed pre-coronavirus but which now apply to the new normal

Special consideration should be given to equality and discrimination law as a lot of the decisions made will need to take into account people’s individual challenges while also avoid being indirectly discriminatory.

The Equality and Human Rights Commission has published guidance for employers on how to best apply the Equality Act 2010 to challenges presented by coronavirus.

Different rules and regulations in Wales

The devolved administrations have responsibility for public health in their countries. This means that Wales, Scotland and Northern Ireland may choose to have different levels of restrictions to England.

For example, in Wales employers are under a specific legal obligation to take all reasonable steps to enable social distancing within the workplace. When we mention “government guidance” in this document we’re referring to the advice published by civil servants based in Whitehall, London. If you have offices in Wales, Scotland or Northern Ireland you’ll need to understand the rules that are in place in these countries when designing work systems.

The impact of coronavirus on working practices could be long-term

For those who work in office-based environments it’s likely that ‘return to work’ is still going to involve a significant amount of working from home. For example, workplaces are likely only to be able to accommodate a certain percentage of their workforce at any one time. At any time a number of the workforce are likely to be asked to isolate at short notice.

The government’s coronavirus response strategy said – “For the foreseeable future, workers should continue to work from home rather than their normal physical workplace, wherever possible. This will help minimise the number of social contacts across the country and therefore keep transmissions as low as possible… All workers who cannot work from home should travel to work if their workplace is open.”

A growing body of science indicates that the highest-risk locations for spreading coronavirus are enclosed spaces where multiple people interact – such as traditional office spaces, public transport, pubs and nightclubs. While the government is keen to get the economy back to functioning normally as soon as possible it's likely to concentrate on opening up those aspects of business that are less risky and more necessary for the successful function of an organisation.

What policies should be looked at?

You’ll need to revisit your health and safety policies to cover your approach to controlling the risks presented by coronavirus. It’s possible that workers will be asked to isolate at short notice, so it would be useful to create a policy of what needs to happen if this is the case.

You’ll also need to institute a process for handling employee complaints and concerns about health and safety, which may mean adapting your whistleblowing policy. You may also need to change your data processing policies. If you’re going to be processing coronavirus data, you need to let your employees know why you’re doing so and what you’ll do with the information.

If your organisation is working in new ways, then there might be new challenges that need to be managed, which might include creating new specifically focused policies. For example, those who host a video call become the data controller for the information created in the meeting, a responsibility they would not have when hosting a face-to-face meeting.

There’s a good chance that there will be an increase in flexible working requests, so you should ensure that your policy for dealing with such request is effective and legally compliant.

If as an organisation you’ll be providing personal protective equipment (PPE) to members of staff then you should have a policy around it’s usage and to explain what responsibilities the employee has when using PPE, for example that they are properly trained to fit the PPE safely.

Note that under the government guidance law firms (and similar offices) should not encourage the preventative use of PPE. The guidance states that sanitation and social distancing are regarded as the best measures to combat the virus. However, if an employee chooses to use a face covering (which is different to PPE) then the employer has a duty to support the employee on how to wear it properly. See our safe return to the office toolkit for firms for further details.

If there are certain activities that it was always assumed would be carried out in person, but now may need to be carried out remotely, you should test the policies related to these activities to assess whether they still work as intended.

The changes you make to your policies should be clearly communicated to all members of staff. Employees have independent statutory duties to take reasonable care for their own health and safety, and that of other persons, so you need to educate and train your staff on the practices and policies you have decided to adopt.

As an employer you also can be held responsible for the behaviour of those you manage. If workers are not following the guidelines you’ve put in place you may have to discipline them. If you do not, then you could be liable for neglecting the health and safety of your workers as you may be shown to not be doing what is necessary to mitigate the risks.

Reopening offices

Reopening your office

Every employment contract contains an implied term that the employer will take reasonable steps to ensure the safety of their workforce. If an employer fails to do this then this may constitute a fundamental breach of the employment contract. The employment law and health and safety framework were not designed with managing a pandemic in mind, so the application of this implied term in this new context is uncertain, but there are principles that can be followed to minimise the risk of litigation in this area.

The HSE general advice for creating a safe working environment is that employers should:

  • undertake a risk assessment
  • set up safe systems of work, informed by the risk assessment
  • implement the safe systems of work
  • keep the systems of work under review

If possible, test the processes you put in place on a lower number of employees to see how they work in practice. Understand what works well and where problems arise, before fully opening your office.

Employers should understand the government’s guidance and be aware that what is mandated may change as scientists deem the risk changes. For example, while the coronavirus alert level remains at Level 4 office-based staff will be encouraged to stay at home, unless they cannot work from home or it is necessary for the success of the business.

The government has published detailed guidance advising how offices can open safely in England. We’ve highlighted the most relevant aspects for law firms.

If social distancing cannot be maintained in your workspaces, then you may be exposing employees to a risk, even if you are able to provide PPE.

An employer’s duty at common law is to take reasonable steps to ensure the safety of their workers. Many jobs contain risks, which can be managed, but, arguably, those risks should only be managed if they cannot be negated by maximising the amount of work employees can do from home. If you wish to encourage workers to return to the office it would be beneficial to document the business reasons for this, alongside the measures implemented to bring the risk down to an acceptable level.

If you reopen your office while the government advises working from home where possible you're unlikely to be able to compel people to come into work unless you can show that you've made every reasonable effort to enable working from home, and this effort was unsuccessful.

Carrying out a risk assessment and sharing it with your employees

The government advises that employers should carry out a coronavirus risk assessment, in consultation with workers or trade unions. It also states that all businesses with over 50 employees are expected to publish the results of their risk assessments on their website.

Risk assessment documents are likely to be long and contain industry language so you may wish to publish an abridged version of your risk assessment, which is written specifically for a non-specialist audience.

Coronavirus issues have dominated our society for several months so it’s likely that workers will want to understand what is being done to keep them safe and why certain decisions have been made. Employers also have a statutory duty to consult with employees, their elected representatives and/or recognised trade unions about important health and safety matters.

The risk assessment should also look at different groups of workers and identify who may need to take extra health and safety measures. It’s also good practice to share the risks you’ve identified with relevant members of staff and explain what is being done to minimise the risks.

Choosing who can return to work

Employers should ascertain which workers and what working practices are best done in a specific location. This could partly be done by asking workers for their view. Different employees will have different situations to manage, so their need to be in office or stay at home may be different.

It could be useful to start exploring who is willing to come back in to work and on what basis. It would also be beneficial to understand what concerns employees might have about returning to work. Having such information will allow you to plan in the medium term how to use your office space as the risk levels change, and what display screen equipment (DSE) checks might be needed for those who will be working from home for a long period of time.

If too many employees volunteer to return to the workplace, you may need to implement a rota system or make selections on an objective basis. If you’re implementing a rota system, try to match employees with the same team each time they come into work and split employees into smaller, contained teams if possible. This will help to contain any outbreak of coronavirus in your workplace to small groups. The more connections a person has the greater the number of people could be infected if that person catches coronavirus.

Choosing who on furlough can return to work

If you’re only able to offer some employees on furlough the chance to come back, you should operate a fair and transparent selection process. This process could include asking furloughed employees if they wish to return to work, while being clear that the decision is at the discretion of the employer.

It’s possible that workers who are unhappy about being kept on furlough could raise grievances about not being selected to return to work if they believe the selection process was unfair.

Can staff demand to come into the office?

You are not required to reopen your building to accommodate employees whose home circumstances mean that they cannot work from home. Though if an employee seems desperate to return to the workplace it’s worth enquiring whether they need special support until the office reopens.

There may be clinically extremely vulnerable or clinically vulnerable people who are keen to come back to work. You should handle such situations with sensitivity and discuss options with the individual in question. There may be circumstances where it is not advisable to allow them to return to work, even if they want to, particularly in the case of someone who is clinically extremely vulnerable. The government guidance says if you were to do so you would be exposing them to a risk of being seriously hurt.

The duty of care employers have towards their employees is not one that is able to be delegated. Therefore a clinically vulnerable or extremely vulnerable employee (or, indeed, any employee) cannot take responsibility for their health by agreeing to waive the employer's responsibility towards them.

It’s best to familiarise yourself with who the government defines to be clinically extremely vulnerable and clinically vulnerable, and the shielding advice given to each group. For example, clinically vulnerable people who cannot work from home can return to work but must take extra care with social distancing and, in line with the government’s guidance, should be “offered the option of the safest available on-site roles” which enable them to stay the requisite two metres from others. More information on this can be found on the Acas website.

Can a worker refuse to come into work or leave a workplace if they think it's unsafe?

Sections 44 (s.44) and section 100 (s.100) of the Employment Rights Act 1996 protect employees from detriments (for example, loss of pay) or dismissal if they leave or refuse to attend the workplace for health and safety reasons. This is an employee's right from day one.

Such disputes have rarely been heard in the employment tribunals and have never been applied to a pandemic situation. This means it’s hard to be certain as to the strength of this right. Where an employee has been dismissed because of taking protected action under section 100(1) of the act any compensatory award is uncapped, so those organisations that do not take seriously this right leave themselves open to a potentially significant financial penalty.

An added complication is that a complaint that “the health and safety of any individual has been, is being or is likely to be endangered” is likely to count as a protected disclosure for the purposes of whistleblowing legislation, so those who suffer detriment after making a claim that working practices are dangerous could have a valid claim under the Public Disclosure Act 1998. This opens-up the possibility for the employee to claim interim relief.

What is important when considering whether the protections under s.44 and s.100 apply is whether an employee’s belief that a workplace is unsafe was reasonable when they made that decision. It does not matter what the employer’s view is, nor whether the working environment complied with health and safety standards. The fact the one employee is willing to work does not negate the belief of another that there is imminent danger. Employees do not have to consult before deciding that a workplace is unsafe to gain protection under s.44 and s.100.

Due to the government messaging and news reporting of coronavirus it’s likely to be reasonable for employees to believe there was a serious and imminent threat unless employers take appropriate action. The best way to minimise the risks of falling foul of s.44 and s.100 is to observe health and safety laws, including the government’s guidance on providing a safe workplace and communicate to your workforce how you’re doing this.

Making your risk assessment, or an abridged version, available to staff will enable employees to see that your decisions have taken into account how to mitigate the risks of coronavirus. Proof of a good communication strategy and documented decision making will help if you need to defend yourself against such a claim.

If an employee says that they’re refusing an instruction because they think it’s dangerous you should investigate whether this view was reasonable before deciding how to proceed. If the refusal was reasonable to make though mistaken on the facts, you should communicate with the employee to make sure they understand your risk assessment. At the same time, if there is an effective compromise, then an alternative form of working should be agreed, even if you do not believe that it’s strictly necessary for health and safety reasons.

Employers have a broad obligation to take practical measures to support the mental health and wellbeing of workers, and to consider whether flexible working requests are reasonable.

If the employee disagrees with the efforts you make to give them confidence that they’ll be working in a safe environment, and refuses an instruction that you’re confident the employee should consider to be reasonable, you’ll need to decide whether to commence disciplinary action or offer a period of unpaid leave. It’s likely to be to your benefit to gain advice from an employment lawyer before making such a decision.

Is it my responsibility to take into account the risks involved in travelling to the office?

The answer to this question is unclear. Health and safety legislation and regulations have always held employers accountable for the working environments they ask workers to operate in.

Employment law protections, such as s.44 and s.100, were designed to protect those who did not want to expose themselves to a danger at work. Alternatively, the courts may decide that an employer’s general duty of care does stretch to considering the public health risks associated with using public transport.

The safest way to minimise the risk of litigation is to strictly follow the government’s guidance in this area. At the moment the government is asking people to use public transport only if it is absolutely necessary.

If you have employees that must come into work and would normally use public transport to do so, you should consider how to minimise the risk of exposure to coronavirus. This could include:

  • staggered start and finish times
  • only insisting that staff travel when it’s absolutely necessary to do so
  • rotating attendance where possible so the need to travel does not fall disproportionately on a minority of workers
  • offering to supply appropriate face coverings to those that must travel
  • not demanding that those classed as vulnerable use public transport

You could also consider how to support employees to travel in other ways – for example, electronic scooter, cycling, running, moped. However, some of these activities may be difficult to support due to the complication around providing facilities such as showers.

Managing those classed as vulnerable

Making special requirements for those the government deems to be particularly vulnerable to coronavirus

You should consider what reasonable adjustments can be made to help those classified by the government as vulnerable to work in an acceptable environment. Failure to do so could result in a claim for negligence or discrimination.

The government recognises two groups of vulnerable people – those who are clinically extremely vulnerable (who have been advised to shield themselves) and those who are clinically vulnerable.

The government’s guidance says that clinically extremely vulnerable people are “strongly advised not to work outside the home”, so they should not return to work. In April the government added those who are shielding due to coronavirus reasons to the list of people who are eligible for Statutory Sick Pay (SSP).

Clinically vulnerable people who cannot work from home can return to work but must take extra care with social distancing and, in line with the government’s guidance, should be “offered the option of the safest available on-site roles” which enable them to stay the requisite two metres from others.

Many of those classed by the government as being vulnerable will also be defined as disabled by the Equality Act 2010. This means they have the right to receive reasonable adjustments to their working conditions and not to be put at a disadvantage compared with non-disabled employees, unless this is justified.

Is it reasonable for a worker to refuse to come into the office because they live with a clinically vulnerable person?

From a legal perspective, probably not, although we’re yet to see how Employment Tribunals will determine cases post-coronavirus. In general, employers are not responsible for those who live with their workers.

The government guidance says that those living with a person who is shielding can leave the home and that social distancing should be practiced within the house, but asks employers to be sensitive to the needs of those who live with vulnerable individuals.

It’s worth bearing in mind that employees can make a personal injury claim if they believe the employer has not done what is necessary to protect their mental health. Forcing an employee to put themselves in a situation they deem to be dangerous when there are other possible ways of working could be an avoidable cause of stress.

Any request to work from home in such circumstances should be fully considered, where a compromise is possible this opportunity should be taken. If it’s not possible for this employee to work for the organisation from home then the reasons for this decision should be clearly documented. You may wish to treat any such request as a flexible working request. Read the government’s advice on how employers should handle a flexible working request.

Am I able to compel a pregnant worker to come into the office?

The government’s guidance classes pregnant women as being clinically vulnerable rather than clinically extremely vulnerable. This means those who are pregnant can be asked to attend a workplace, but employers must assess the specific risks to pregnant employees and do everything possible to prevent or remove them. This may include adapting their role to remove them from the highest risk situations and enabling working from home for the whole of the pregnancy.

You should discuss the risks with the pregnant worker and possible way to mitigate them. Different women will have different views on what level of risk is acceptable.

Can a worker refuse to come into the office or work certain hours because of childcare commitments?

Employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of 18 weeks parental leave per child).

Employees also have a right to a reasonable amount of unpaid time off where it’s necessary to deal with unexpected events involving their dependants. This right was designed to help those with caring responsibilities to bridge unexpected gaps, for example if the nursery they send their child to closes at short notice, but is probably applicable to the longer-term challenges presented by coronavirus.

Parents faced with these problem may make a flexible working request. Employers are under a legal obligation to deal with requests in a ‘reasonable manner’. Acas advises that employers “…should consider the request carefully looking at the benefits of the requested changes in working conditions for the employee and your business and weighing these against any adverse business impact of implementing the changes... In considering the request you must not discriminate unlawfully against the employee.

However, there is no absolute right to refuse to come into the office or to work certain hours because of childcare commitments; the employer could consider disciplinary action in a case where an employee refuses to follow a reasonable instruction which might (in time) include a request to come into the office, or to work certain hours.” It’s likely to be to your benefit to gain advice from an employment lawyer before making such a decision.

Will workers still need to self-isolate if they have symptoms or have been close to someone who is suspected to have had coronavirus?

The government’s guidance on self-isolation says that a person who is showing symptoms of coronavirus must isolate at home for a period of seven days. In addition, everyone else in their household must isolate for 14 days (or, if they also start to show symptoms, seven days from that day). Requiring or allowing a person who should be self-isolating to attend the workplace would likely be a breach of the employer’s health and safety obligations.

If an employee is unable to work because they are self-isolating, they will be deemed incapable for work and entitled to receive SSP, provided they meet the other eligibility criteria.

Managing the health of workers

Will I have to provide PPE?

This is a question that you’ll need to ask yourself when conducting your organisations risk assessment.

Note that under the government guidance law firms (and similar offices) should not encourage the preventative use of PPE. However, if an employee chooses to use a face covering (which is different to PPE) then the employer has a duty to support the employee how to wear it properly. See our safe return to the office toolkit for firms for further details.

For other organisations, if the risk assessment shows that PPE is required for certain roles, then the organisation must provide it.

The government’s preference is for coronavirus risks to be managed through social distancing, hygiene habits, and minimising contact between individuals. The use of medical grade PPE should be restricted to those roles where other ways to manage risks are not possible.

An employer’s use of PPE is regulated by the Personal Protective Equipment at Work Regulations 1992. The regulations state that the provision of PPE should be a last resort and employers exhaust other measures to prevent or control risks before turning to PPE.

If you provide PPE, you’re responsible for ensuring that it works as expected. This includes ensuring that appropriate training is provided for using the PPE, that it fits each member of staff properly, and that the PPE is maintained and replaced as necessary.

Asking workers to inform me if they have coronavirus

You owe workers a duty of confidentiality and data privacy obligations which would ordinarily mean that you should not disclose details about their health. On the other hand, you have a duty of care and statutory health and safety responsibilities towards your other workers.

Employers will have to balance these obligations. The government has issued guidance on testing for coronavirus: privacy information which includes recommendations on what information should be disclosed to one’s employer.

The Information Commissioner’s Office (ICO) has issued guidance on data protection and workplace health monitoring. It says that while data protection laws do not prevent employers from monitoring health data, they must ensure that they have a lawful basis for processing the data, taking account of the fact that health data is classed as ‘sensitive data’.

The key is to not reveal more information than is reasonably necessary. If it’s possible to warn individuals who have been in contact with a case of coronavirus without revealing the name of the colleague who has to self-isolate then do so. If this is not possible, ask those who know the identity of the person who has had to self-isolate not to disclose this information to anyone else.

Testing workers and/or downloading the NHS app

So far there is no requirement or expectation (as in some other countries) that employers should take steps to monitor employee health, such as requiring temperature checks before employees or visitors are allowed into the office. Without this, it will be very difficult to justify implementing such measures.

If someone refuses to take a temperature test they may be refusing a reasonable instruction. Therefore you may consider whether disciplinary action is appropriate. However, you should understand why they’re refusing before deciding whether to start a disciplinary action as this will clearly be relevant to the reasonableness of their action.

It’s difficult to advise as to whether organisations can force their workers to use any NHS app that is developed. It’s likely that those organisations who provide devices to their workforce can likely mandate that workers download the app – though they’re unlikely to be able to insist that they carry their phone everywhere.

The Information Commissioner favours individuals having the right to set the privacy settings. It’s also possible that a person may have a philosophical belief against the large bureaucracies holding information on them.

Are employers obliged to fund an employee’s home office set-up?

There is not an express obligation in law for an employer to fund the set-up of a home office. However, if certain equipment is necessary to meet a health and safety duty it’s the employer’s responsibility to ensure such equipment is provided. Watch the HSE's video on creating a safe home office set-up.

Some organisations have started offering budgets to workers, to spend on office equipment, while also suggesting what should be bought, as they’ve identified equipment that meet their health and safety requirements.

HM Revenue & Customs (HMRC) has announced that employees who are working from home due to coronavirus will be able to benefit from a temporary exemption for employer reimbursed expenses that cover the cost of home office equipment. The exemption will ensure that employees are not taxed on the reimbursement they receive from their employer with effect from 11 June 2020 until the end of the tax year 2020/21.

However, HMRC will exercise its collection and management discretion and not collect tax and National Insurance contributions due on any reimbursed payments made from 16 March 2020 (the date the government recommended working from home) until the regulations take effect.

The new provisions are set out in The Income Tax (Exemption for Coronavirus Related Home Office Expenses) Regulations 2020.

Carrying out a health and safety check for employees who now work from home

On 20 March, the HSE made a statement that companies do not need to do DSE workstation assessments for temporary homeworkers. They went on to say:

“For those people who are working at home on a long-term basis, the risks associated with using display screen equipment (DSE) must be controlled. This includes doing home workstation assessments.”

This presents a challenge to organisations as the concept of ‘temporary’, when it comes to the need for DSE assessments for home workers, is not defined in law or by regulations.

The DSE Regulations 1992 state that the responsibility for health and safety rests with an organisation and it’s ultimately up to managers to satisfy themselves that their employees are working with equipment that will not cause negative health effects. The Regulations are concerned with doing what is necessary to limit the risk of a bad health outcome, not concepts such as temporary and permanent.

An employer’s general duties to take reasonable care for the health safety and wellbeing of their workers does not change because of coronavirus. Section 2 of the Regulations say that organisations must review their health and safety assessments if:

  1. there is reason to suspect that it is no longer valid; or
  2. there has been a significant change in the matters to which it relates;

This means that employers that do not review health and safety risk assessments to take account of the changes brought about by coronavirus will be breaching the Regulations. Any such review would need to take account of the realistic future – that office workers are likely to be required to work from home, at least for a significant portion of any week, for a up to a year. This is especially true if workers need to use public transport to get to work.

You could also factor in the culture change that current suppression measures are likely to accelerate – that in the future it’ll be acceptable for almost all office jobs to be done from home.

Employers still need to be confident that their workers are working in an environment that complies with the Regulations, even if this environment is ‘temporary’. What's important is that an organisation can show that they’ve thought about this and have made any changes that they believe to be necessary. This may include doing full DSE checks for those workers who are continuing to work from home after a certain amount of time.

Employees do have a duty to take care of their own health and safety at work, so there is some responsibility on those who work from home to let the employer know if they’re suffering from an unexpected consequence of their home set-up. You should encourage those who are working from home to report any issues they have to their manager and then have a process so that the organisation can assess the risk of what has been reported.

Do I have a responsibility to be concerned for the mental health of my workforce?

Yes. Employers have a duty of care towards the mental health of their workers. The legal expectation is that managers conduct themselves in a way that a reasonable and prudent employer would, taking positive thought for the safety of those who work for them, in light of what the employer knows or ought to known.

Organisations should have processes in place to ensure that workers are able to raise mental health concerns. They should also consider the nature and extent of the work done by the employee, including:

  • whether their workload has increased
  • whether the mental strain on the employee has increased
  • how intellectually demanding is the work
  • whether the demands being made on the employee are unreasonable compared to demands being made on others

Health and safety law and regulations

Health and safety legislation enforcement in the UK

Health and safety legislation enforcement is split between the HSE and the relevant local authority, depending on the main activity carried out at any particular premises.

The Health and Safety (Enforcing Authority) Regulations 1998 allocate the enforcement of health and safety legislation at different premises between local authorities and HSE. Enforcement allocation depends on the main activity carried on at a particular workplace. In general terms, local authorities are the main enforcing authority in lower-risk workplaces such as offices (although this does not include government or local government offices; these are regulated by the HSE).

Law firms would likely be classed as a lower-risk workplace, with enforcement of any health and safety legislation being taken by the relevant local authority.

Can a worker make a report of/raise a concern of coronavirus in my workplace to the HSE or my local authority?

Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) coronavirus related issues could only be reported to the HSE if:

  • an unintended incident at work has led to someone’s possible or actual exposure to coronavirus – this must be reported as a dangerous occurrence
  • a worker has been diagnosed as having coronavirus and there is reasonable evidence that it was caused by exposure at work – this must be reported as a case of disease
  • a worker dies as a result of occupational exposure to coronavirus

A worker could report an organisation if they witness a dangerous occurrence. Under the regulations dangerous occurrences are classed as being certain, specified near-miss events.

Are all reported incidents investigated?

The HSE sets out criteria for selection for investigation of notified work-related accidents, ill-health and dangerous occurrences. The following criteria apply to all relevant incidents notified to enforcing authorities.

Predominantly, notification will be through RIDDOR reports, but the criteria remain relevant for notifications received through other means (for example, contact by emergency services).

Mandatory investigations

The following defined major incidents should always be investigated:

  1. All work-related accidents which result in the death of any person, including nonworkers (this specifically excludes suicides and deaths from natural causes), or other deaths arising from a preventable work-related cause, where there is a likelihood of a serious breach of health and safety law, and where it is appropriate for enforcing authorities to investigate
  2. All work-related accidents resulting in a “Specified Injury” under regulation 4.1
  3. Cases of Occupational Disease

    The following notifications of cases of occupational disease, other than those arising from circumstances or situations which have already been investigated:

    1. All reports of cases of occupational disease which are reportable under RIDDOR Regulations 8 – 10
    2. Other reports of cases of occupational disease with the potential to cause death or a “serious health effect” as defined in Enforcement Management Model, and which arise from working practices that are likely to be ongoing at the time the report is made
  4. Incidents which indicate a likelihood of a serious breach of health and safety law – this includes any incidents considered liable to give rise to serious public concern, where, from the facts known, the application of the Enforcement Management Model would give rise to an initial enforcement expectation of a notice or a prosecution

Discretionary investigations

Where an incident does not fall within the criteria for a mandatory investigation, an incident may be investigated at the local authority’s discretion when considering a number of factors, including:

  • the incident may not have caused a RIDDOR defined major injury but is either in accordance with HSE’s national guidance to local authorities on targeting interventions or one which arises from a specific health and safety initiative that may be contained within the Local Authorities Service Plan
  • the poor health and safety track record of the duty holder and whether or not there has been a history of similar events
  • the incident has the potential for high public profile\media attention or has received considerable media attention leading to reputational risk through inaction\perceived inaction
  • the incident may give rise to complaint(s) – depending on the circumstances, this should be dealt with as a normal complaint procedure and not necessarily require a full incident investigation unless found to be appropriate

Can my local authority do a proactive inspection of my workplace?

HSE takes a view that given the sheer number of work places local authorities are responsible for regulating, it’s not efficient nor proportionate to deliver a regulatory function based on inspection of individual workplaces, especially those lower risk work places, such as law firms that are already managing health and safety risks effectively.

Local authorities use a number of interventions which include the provision of guidance and raising awareness (both generally or targeted) and working with local business groups. This will depend on the need and resources of an individual local authority.

Proactive inspection is one of the interventions available to the local authority. It’s the most resource intensive intervention for both local authorities and the workplace involved so is typically limited to the highest risk premises. It has not been considered to be an effective use of public (or business) resources to inspect comparatively lower risk premises that are managing their risks effectively, so such visits by public health professionals to offices have been unheard of.

Other useful resources

Safe return to the office – our toolkit for firms.

Coronavirus: Returning to work, a House of Commons Library Briefing Paper.

Simmons & Simmons: Coronavirus: Workforce and employment issues

Lewis Silkin advice on responding to the coronavirus outbreak.

Cloisters Toolkit: Returning to work in the time of Coronavirus

Back to Work webinar – The Employment Lawyers Association.