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Health and Safety at Work COVID-19 – how employers should be keeping you safe

Personal Injury and Clinical Negligence Solicitor, Jenny Chan, examines the Health and Safety at Work Act 1974, and how employers should be responding...

In light of the COVID-19 pandemic, everyone is now familiar with the words Personal Protective Equipment, otherwise known as ‘PPE’. We are of course aware of how important PPE is in a healthcare setting but now that the Government is easing the restrictions on the ‘Lockdown’ in readiness for everyone’s return to work, what do we all know about the general legal requirements that ensure our Health and Safety at work? And how will they apply during the COVID-19 pandemic?

What is the Law Governing Health and Safety at Work?

Whilst these are indeed unprecedented times, employers must still comply with their duties under the Health and Safety at Work Act 1974 (HSWA) and various Health and Safety Regulations. [1]

As part of complying with the Health and Safety requirements, employers must carry out Risk Assessments as well as ensure that employees have the required knowledge and tools to keep themselves and others safe in the workplace. Employers’ duties can include ensuring that ‘equipment used in the workplace’, which could include cranes, workstations or even desk chairs, are properly maintained and are safe to use, ensuring that appropriate training is provided for employees involved in ‘handling and transporting of articles and substances’ and providing suitable PPE for employees to carry out their work safely.

The responsibility is on the employer to ensure that they maintain a safe working environment for all employees as far as ‘Reasonably practicable’ (Section 2(2)(d) of HSWA).

Workplace health and safety is governed by the Health and Safety Executive (HSE) and although only the more serious accidents are required to be reported to the HSE, it is a legal requirement that all employers must have an accident book and all accidents in the workplace must be recorded in that book.

What is Reasonably Practicable?

Reasonably Practicable is not defined within the HSWA but the HSE has defined it as ‘weighing a risk against the trouble, time and money needed to control it’.

Essentially, employers must consider whether the cost, accounting also for time and effort, of controlling and/or reducing the risk is proportionate to the level of risk.

For example, if there was a sudden change in ceiling height in part of a public house, it would be reasonable for a warning sign to be displayed, in a visible place, alerting visitors of the potential hazard. I’m sure most would agree that the trouble, time, and cost involved in doing so would be small when weighed up against the risk of accident or injury.

Of course, each risk must be individually assessed as part of a Risk Assessment but what the HSWA does is to ensure that employers do not simply choose to ignore the risk but to carry out an exercise to weigh up the risk against a practical solution to reduce or control it.

COVID-19 pandemic: how is my employer required to keep me safe?

In addition to the laws and regulations already in force under the HSWA, the Government has issued guidance to assist employers in preparing for the safe return of their workforce during the COVID-19 pandemic. The Government has published guidance for specific sectors of the industry including offices, restaurants, and construction. Measures employers must also consider include carrying out Covid-19 Risk Assessments, ensuring that there is an appropriate cleaning and hygiene procedure in place, and maintaining a 2-metre distance where possible and of course where possible employers should help people to work from home.

Although PPE, or the lack of it, has been making the headlines since the COVID-19 pandemic, there has always been a duty on employers to provide PPE in circumstances where there are risks to Health and Safety that cannot be controlled in any other way. PPE can include helmets, gloves, goggles, and any type of protective equipment and is not just limited to respiratory protective equipment such as face masks. All PPE must be provided free of charge and those being provided with such equipment must be trained in the use of that equipment.

In the current COVID-19 pandemic, for Health Professionals and those workers who would usually require PPE as part of their work, the government has advised that they continue to be provided with the PPE equipment. For workers who do not usually require PPE for their work, there is no requirement for employers to provide any PPE equipment but instead, it is encouraged that workers should continue to practice working from home and social distancing.

Although face coverings are not required to be worn by law, if an employee chooses to wear them the employer should support the worker in wearing them safely.

Obviously, in the current climate, there is more reason than ever for employers to be reminded of their duties under HSWA and Regulations for the protection of themselves, their employees and their business.

Despite the significant penalties to employers who are found to be in breach of the HSWA or Regulations, there are ultimately those who still fail to carry out regular and proper Risk Assessments or those who inaccurately weigh up the risks against the cost of controlling measures, resulting in accidents and ultimately injuries being suffered in the course of employment.

Should you have any questions regarding the above, or need any related legal advice, please contact Jenny Chan, at jenny.chan@seddons.co.uk, or on 020 7725 8029, or one of the litigation team.

[1] The Management of Health and Safety Regulations 1999; Workplace (Health, Safety and Welfare) Regulations 1992; The Health and Safety (Display Screen Equipment) Regulations 1992; The Manual Handling Operations Regulations 1992 amended 2002; The Personal Protective Equipment at Work Regulations 1992; The Provision and Use of Work Equipment Regulations 1998 (PUWER) and The Working Time Regulations 1998

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