Significant restrictions have been imposed on our everyday lives for nearly two years, for very good reason, as we tried to minimise the risks posed to life and health by the COVID-19 pandemic. On 24 February this year, the last of the remaining restrictions were lifted, with the Government heralding a new phase of ‘learning to live with the virus’. Given that the virus still poses varying degrees of risk, where does that leave employers when it comes to navigating, on the one hand, their health & safety obligations and, on the other, the changed of expectations of staff?

Although the government may have removed many of the legal obligations associated with managing COVID, such as the requirement to self-isolate for people who test positive and their close contacts, the obligations on employers to safeguard their staff’s health has not been lifted at all. Businesses now have more flexibility to consider their own approach for their workplace, in order to live with the virus, but they are bound by a variety of implied obligations, as well as those imposed by the Health & Safety at Work etc Act 1974. The employer’s implied duty to take reasonable care of their employees’ health & safety is well-established and organisations are required to take reasonable steps to provide a safe workplace and system of work. This naturally includes risk assessing for the continued threat to health which is presented by COVID and taking steps to mitigate those risks.

The Health & Safety Executive’s guide Working safely during the coronavirus (COVID-19) pandemic remains a good starting point for considering the type of measures which will assist in limiting the risks, such as ventilation and additional hygiene steps. In addition, the sector specific guidance for offices, factories, the construction and retail industries has been updated by the Government and can be found here . Government advice now also promotes ‘safer behaviours’, for individuals, such as getting vaccinated, continuing to wear a face covering in enclosed spaces, continuing to test and staying at home if unwell or testing positive. Those ‘safer behaviours’ are also likely to be an appropriate approach for employers to support and promote, because they are responsible steps and in order to demonstrate that they are mindful of their obligations to minimise risk.

Although those individuals identified as ‘clinically extremely vulnerable’ are no longer advised to shield and the widespread availability of the vaccine is thought to have reduced the level of risk for many people in that group, a significant number of them may well have disabilities, as defined by the Equality Act 2010. On that basis, such staff should be considered very carefully in terms of measures which are needed to limit exposure to the virus, particularly for those who may not have been able to take up the vaccine because of an established health condition. In addition to the general measures being taken, employers have a duty to consider reasonable adjustments being made, in an effort to accommodate the particular difficulties which may be posed to a disabled member of staff.

During the pandemic rising numbers of employment tribunal claims have illustrated some of the new disputes caused by diverging views of what amounts to health & safety at work. Although claims alleging detriment or dismissal for health & safety reasons had been relatively unusual in the past, the employment tribunals have been dealing with numbers of claims from those who allege that they suffered a detriment or were dismissed for refusing to attend work in circumstances of serious and imminent danger from the virus. Those cases will turn on their own particular facts, but are a stark reminder that many employees continue to be very concerned about their own safety in workplaces which they may not have been required to attend for a long time. Just as we see the end of the Government advice that we should work from home if we can, many employees have become very used to the relative safety, or even just the comfort and convenience, of working from home. It remains to be seen whether the move to WFH is going to be a permanent one in many cases.

Whether you need advice on appropriate health & safety measures, reasonable adjustments for disabled staff, or handling challenges brought by a move to get staff back to the office, we can advise on minimising the range of risks to your business.

If you would like further advice tailored to your particular circumstances, please contact us.