March 27, 2020

COVID-19 UK: Safety, Health and Environment (SHE) Regulatory - Re-evaluate your risk assessment

The Covid-19 pandemic is rapidly gathering strength and placing huge strain on all members of society – individuals and families, firms and workers – with the home becoming the new workplace for many thousands of people. And for those people who still do leave their home to travel to work, the journey itself may pose the greatest threat of all.

In this article, we consider how employers can ensure they comply with their health and safety duties by using existing risk assessment tools to face this new threat. Failure to promptly put in place measures to respond to this crisis could result in serious criminal penalties for both organisations and individuals.

Using old tools in a new way

Though the landscape may have changed beyond recognition, the standard instruments for risk assessment i.e. Management of Health and Safety at Work Regulations 1999 and Health and Safety at Work Act 1974 have not been re-written. However, though the tools remain the same, with the pandemic comes the need to take a new approach to risk assessment, or at least to use the old tools in a new way.

Be warned, if you fail to adequately account for Covid-19 when assessing risk, enforcement action could follow - at least when things settle down.

The first thing must be to review existing arrangements for risk management in the light of the changed circumstances. The world turned upside down by Covid-19 is a perfect example of why risk assessments may no longer be valid, Regulation 3 of the Management of Health and Safety at Work Regulations 1999 requires this to be done i.e. Reg. 3(3) Any assessment… shall be reviewed by the employer if:

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates

The need to review arrangements for managing risk when circumstances demand it is a cornerstone of the management regulations and good health and safety practice.

Look at the principles of prevention and ask yourself, does the correct application of these require me to review or re-write my risk assessments?

We are used to asking the questions, how can this be done more safely or can I remove the risk altogether by using a different method of work but we are less used to asking the question ‘should I do the work at all’. Of course, the question may be answered for you as the Government advice is travel to and from work, but only where work absolutely cannot be done from home.

So it may be that the question ‘should I do the work’ is answered by the Government but where it is not, how do employers answer the question?

Innovative solutions

Innovative solutions are probably now required. Assuming that work is not banned by the Government altogether, the question must be what new ways of working can be devised to ensure safe working in the Covid-19 world. This would for example, include where possible, ensuring employees adhere to Government advice such as staying two metres away from other people at all times.

Construction has proved to be a thorny topic. Should construction work continue at all, if it is not absolutely necessary: i.e. should it now only be hospitals that are being built, or can work continue on other projects? Indeed, the Health Secretary, Matt Hancock's comments on 24 March suggested that that those who cannot work from home should go to work "to keep the country running" which tends to suggest the Government accepts that more than just 'front line' health, food, distribution etc. work is to be permitted.

The simple answer must be that work may only continue if a risk assessment shows that the risks associated with Covid-19 can be reduced to a tolerable level, taking account of the prevailing guidance. Employers must still do all that is reasonably practicable to safeguard its employees and those affected by its operations. If simple precautions such as social distancing cannot be ensured, and the work does not have vital social utility, it should not be undertaken.

Whatever the risk assessment may say, Government edict may still prohibit it, in which case the findings of any risk assessment are moot.

However, construction work has certainly continued on continental Europe, where, in many places the pandemic has a tighter grip and containment measures have developed more than here.

Innovative solutions have been developed: only opening sites on particular days, split shifts and remote working. More creative thinking may be required.

Prepare, review, implement!

In summary, it is now more important than ever for employers to review their risk assessments in light of the risk posed by Covid 19, as aside from the obvious health risks to employees, failure to do so may put the business at risk of potential criminal liability, and if the failings are attributable to senior management, they too may face personal criminal liability under s.37 Health & Safety at Work etc. Act 1974 if the offence was committed with their consent, connivance or neglect.

Authors: Chris Morrison, Partner, and Nathan Buckley, Legal Director.

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com