The UK COVID-19 recovery strategy so far… key takeaways for employers in England

Yesterday afternoon, the UK Government published “Our plan to rebuild: the UK Government’s COVID-19 recovery strategy” along with eight new guides covering a range of different types of workplace. These guides are intended to help employers, employees and the self-employed understand how to work safely during the coronavirus (COVID-19) pandemic in businesses which are now permitted to be open, from outdoor environments and construction sites to factories and offices.

The guides set out practical considerations for businesses centred around five key points which the Government has said should be implemented as soon as it is practical. The guides apply to employers in England only and those with workplaces in Scotland, Wales and Northern Ireland will need to consider the different public health and safety requirements that apply there.

In summary, the five key points around which all the guides are based are as follows:

1. All reasonable steps should be taken by employers to help staff work from home if they can. If they cannot work from home, the Government has now clearly said they should return to work. Staff should speak to their employer about when their workplace will open.
2. Employers should carry out a COVID-19 risk assessment, in consultation with workers or trade unions to establish what workplace guidelines to put in place. If possible, employers should publish the results of their risk assessments on their website and the Government expects all businesses with over 50 employees to do so.
3. Two metre social distancing should be maintained wherever possible by measures such as re-designing workspaces, staggering start times, creating one way walk-throughs, opening more entrances and exits or changing seating layouts in break rooms.
4. Transmission risk should be managed where people cannot be two metres apart with employers looking into erecting barriers in shared spaces, introducing shift patterns or creating fixed teams to minimise the number of people in contact with one another, or facing each other.
5. Cleaning processes should be reinforced with workplaces cleaned more frequently, particularly high-contact objects like door handles and keyboards. Handwashing facilities or hand sanitisers should also be provided by employers at entry and exit points.

The Government expects a high level of engagement between employers and trade unions and/or workers directly, especially in relation to the health and safety measures that will be implemented. Each one of the eight guides emphasises at the start “Employers have a duty to consult their people on health and safety. You can do this by listening and talking to them about the work and how you will manage risks from COVID-19… You must consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers. As an employer, you cannot decide who the representative will be”. This is reinforced in the ACAS Guidance, which was also updated yesterday and which stresses that the first step employers should take in planning for the “new normal” is to talk to their employees.

The Government is clear in the guides, and the Prime Minister has been at pains to emphasise, that workers should not be forced back into an unsafe workplace – but at the same time the guides recognise that the obligation on employers is only to do everything reasonably practicable to ensure safe working, recognising you cannot completely eliminate the risk of COVID-19. The Government directs employees to raise concerns which are not dealt with internally with their local authority and the Health and Safety Executive (“HSE”), and has increased the budget of the HSE by £14 million to support employers and deal with complaints that are made. Given that the guides leave much to the discretion of employers and employees may not agree that the safety measures taken are sufficient, there are likely to be some difficult discussions ahead and an increase in employment claims based on the protection afforded to whistle blowers including those who complain about health and safety matters.

The plan and guides also set out the Government’s new position on face coverings, a subject which continues to attract much comment. The plan provides that face coverings (rather than facemasks) “should” be worn in enclosed public spaces where social distancing is not possible or where individuals are more likely to come into contact with people they do not normally meet. However, the guides state that face coverings may only be “marginally beneficial” in the workplace and are no replacement for other ways of managing risk, so the Government would not expect to see employers relying on face coverings as risk management for the purposes of their health and safety risk assessments. They emphasise that wearing face coverings is optional rather than required by law, including in the workplace, and if employees choose to wear one they must wear them properly, and employers should support that choice by providing guidance on their use.

Interestingly the guides do not include any obligation on employees to self-report virus symptoms or exposure to their employer, or cover any kind of testing in the workplace (temperature or for the virus itself).

Finally, as with many other aspects of the Government response to the COVID-19 pandemic, these latest publications are in the form of guides rather than regulation, and are expressly stated to be non-statutory. The guides do not replace or supersede the existing employment law and other legal obligations to which employers continue to be subject, including under the Equalities Act. As a result, employers will still need to comply with their contractual obligations when varying terms and conditions, consult collectively where appropriate and consider discrimination risks when designing and implementing the “new normal”.

Many of the employment law issues that arise from the matters addressed in the guides are covered in our more detailed update here, which was drafted before the guides were published.

We will also look in more detail at how this latest Government guidance will operate within the existing employment law framework in our webinar later this week - “Planning for the ‘new normal’ post lockdown – the legal implications for employers”; there is still time to register here, we hope you will be able to join us.

There is also comfort for employers who are unable to open their businesses until July at the earliest following the Chancellor’s announcement this afternoon that the Coronavirus Job Retention Scheme is to be extended again, in its current form until the end of July and with greater flexibility to accommodate part time working from August to October. This longer term flexibility will enable employers to plan for a re-opening which complies with the social distancing measures which are likely still to be in place.