This evening the Prime Minister announced what he described as the Government’s plans for handling the “next phase” of the Covid-19 pandemic and a set of options for England. Key employment points of his announcement were:
- people who can work from home should but people who can’t should go to work;
- new guidance will be issued to employers to make workplaces COVID-secure.
Earlier, Communities Secretary Robert Jenrick had defined the new Stay Alert message as:
“Stay alert will mean stay alert by staying home as much as possible, but stay alert when you do go out by maintaining social distancing, washing your hands, respecting others in the workplace and the other settings that you’ll go to.”
Translating this message is essential. The message on going to work is unambiguous but doesn’t in itself address a multitude of questions such as how vulnerable employees should be treated.
We hope the statement in Parliament tomorrow and the detailed guidance to follow will answer the key questions.
Scotland and Wales
The position in Scotland and Wales is largely unchanged with both devolved Governments in effect retaining the “Stay at Home, Protect the NHS, Save Lives” slogan.
In Scotland, the Government is repeating its message:
“Protect yourself and others:
- stay at home
- only go outside for essential food, health and work reasons
- stay 2 metres (6 feet) away from other people
- wash your hands regularly
- wash your hands as soon as you get home”
In Wales, the Government advises:
“Stay at home:
- only go outside for food, health reasons or work (but only if is not reasonably practicable to work from home)
- stay 2 metres (6ft) away from other people
- wash your hands as soon as you get home
Anyone can spread the virus.”
Significantly, in Wales there is a general requirement for employers to take reasonable measures to prevent the spread of Covid-19 and penalties for employers who fail to enforce social distancing.
Returning To Work
Clearly, the economy can’t stay in lockdown until the end of the year and some sort of return, however it is phased, is inevitable for people who are lower risk. But people who can work from home, need to do so until the pandemic is under full control.
There is however a very real danger that some employers will grasp any opportunity to reduce the protections for their employees in order to seize advantage over their competitors.
They will need to be challenged provided there is clear evidence of unsafe working practices – see below.
Higher Risk Staff
People who are particularly vulnerable themselves or who have particularly vulnerable close relatives also need to stay at home. The Government’s announcement does not change that position.
A striking feature of TSB’s approach to Covid-19 has been the absence of clear directions to branch managers with the inevitable result that some have either ignored or paid lip service to the government’s rules. It is hard to see that this is anything other than a deliberate strategy but if TSB’s top management want to explain their stance we will publish anything they write.
The net result of this approach has been that some staff have been exposed to risks unnecessarily by people who were not sharing those risks. The fact that some local managers have behaved unacceptably in the absence of proper direction, does not alter the reality that accountability rests with people at the top.
Enforcing Safe Working
Under S2.1 and S2.2 of the Health and Safety at Work Act 1974 employers are under a general duty to protect the health, safety and welfare at work of all employees and provide safe systems of work.
S2.2 is quite specific:
“Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular—
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
(d) so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.”
Responsibility for enforcement of the Act in offices lies with local authority Environmental Health Officers and where members identify clearly unsafe working practices we will refer cases to EHOs.
Employment Rights Act 1996
Section 44 of the Employment Rights Act 1996 sets out the right of employees to refuse to work in unsafe environments:
“(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or
(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.”
Shortly, my colleague Mark Brown will enlarge on how we will advise members to use this right.
Ultimately, all the law in the world may not stop managers who are prepared to put the health of so-called “partners” at risk for commercial advantage. Delays in enforcing the law in a number of areas are a national disgrace and employees may not be able to wait for enforcement action to bite. In those situations industrial action, after a statutory ballot, may be the inevitable last resort.
Again, Mark Brown will deal with this in his next newsletter.
I emphasise however that if we are to take any form of action we will need clear evidence that we can validate to show that branch environments and working practices really are unsafe. We are not interested in trouble-making but in preventing genuinely unsafe working and doing so will require detailed input from members.
We will shortly be sending out a new survey to staff to identify any problem areas.