Re-framing ‘Freedom Day’

Amanda Okill

Senior Associate

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July 26, 2021

Categories Employment Law Updates

Steps in managing a safe re-opening of the workplace

On 19th July, accompanied by the rapturous soundbite of ‘Freedom Day,’ the last of the lockdown rules in England were removed.

While many businesses were relieved to see a re-opening, responses have been mixed.

By Friday of the ‘Freedom Day’ week, confusion abounded with news reports confirming Covid hospital admissions at their highest since February 2021 and business across the UK reporting a fear of closure caused by test and trace notifications aka ‘pingdemic.’

While the rules we have become accustomed have gone, Coronavirus and its destabilising effects have not.
So while the legal restrictions are lifted and we remain in a pandemic, many businesses will be wondering what steps they need to take to safely and lawfully manage a re-opening.

Legal issues for employers

The government has published updated Working safely guidance to apply from 19 July 2021.

Although the guidance is non-statutory and cannot be enforced, it would be foolish, potentially negligent to disregard it. Employers have existing legal obligations relating to health and safety, employment, and equalities duties to employees, workers and customers. These duties must be responsibly exercised in the midst of the ongoing pandemic.

The government advice also emphasises that because of new Covid-19 variants spreading in some parts of England there may be additional regional advice.

The starting point for all employers is the Health and Safety at Work Act 1974 which requires them to protect ‘the health, safety and welfare’ at work of all their employees as well as others, including temps, casual workers, self-employed, clients, visitors and the general public. No business can contract out of this duty.

Employees could insist on staying at home and refuse to return to the workplace or do certain tasks if they felt that employers had not responded appropriately to provide a safe environment. Statutory legislation protects employees who leave their workplace because they reasonably believe there to be serious and imminent threat of danger to themselves and others. Coronavirus classifies as a danger.

An example of where an employee may reasonably perceive there to be danger, is if the government issued regional advice to work from home where possible, in light of the Delta variant affecting a particular area of England, and a business ignored it.

It is worth noting that employment lawyers have, in the last year, received numerous queries from employees and HR Managers alike concerned to ensure that the organisations in which they work are both compliant with legilsation and mindful of their staff’s health.

Last year the UK Whistleblowing advice charity, Protect saw a 37% increase in calls for the period between March and September 2020, with many callers concerned about their employer’s apparent failure to comply with health and safety guidance at the time.

What steps should employers now take to manage a safe re-opening both now and in the future?

– They should familiarise themselves with the government’s guidance. It sets out six priority actions which should be implemented to protect staff and customers:- health and safety assessments; the provision of adequate ventilation; regular cleaning; turning away those with COVID-19 symptoms; enabling people to check in to premises; and communicating and providing training on the current safety measures in place. It is worth reading through the guidance: https://www.gov.uk/guidance/working-safely-during-covid-19

– Businesses should continue to support employees to work from home if they can. An immediate, full time return to the workplace is inadvisable from both an employee relations and risk point of view. There are those who are either physically or mentally vulnerable, or living with someone who is. They will be anxious about returning. In June 2021 People Management reported that half of employees would consider leaving their job after the pandemic if their employer did not offer flexible working. The government guidance clearly envisages hybrid forms of working and in some areas where the Delta variant rates are high, continued home working may be preferable. Increased flexibility about how, when and where people work is necessary.

– For those employees who are clinically extremely vulnerable, employers are advised to continue supporting them. They can do so by discussing their individual needs and taking any additional precautions recommended by their clinicians. Not only does government guidance encourage consideration for people at higher risk, facing mental and physical health difficulties, but many will already benefit from the protection of the Equality Act 2010, which requires employers to implement reasonable adjustments for them.

– Carry out a risk assessment of each workplace. This process of a risk assessment is an obligation placed on all employers. It is not a once-and-for-all assessment, but requires review as and when circumstances change. As part of a risk assessment, employers must:

  • identify what work activity or situations might cause transmission of coronavirus (COVID-19);
  • think about who could be at risk – this could include workers, visitors, contractors and delivery drivers;
  • decide how likely it is that someone could be exposed;
  • identify the controls needed to reduce the risk.

Guidance from the Health and Safety Executive’s hub can be found at: https://www.hse.gov.uk/coronavirus/working-safely/risk-assessment.htm

– Plan how to communicate and consult with all employees about any return to the workplace and the measures and processes in place. Government guidance reminds employers to engage with workers on an ongoing basis via the usual vehicles, including with trade unions, or employee representative groups. It helpfully reminds employers to use simple, clear messaging to explain guidelines using images and clear language. Employers must also consider people who do not have English as their first language and who have protected characteristics such as visual impairments.

On a final note, we would advise employers put in place contingency plans for the possibility of a further lockdown. The pandemic is not over and for the foreseeable, employers will be navigating through difficult waters. While the future is uncertain it is safe to say that for now, the lifting of legal restrictions on 19th July did not herald the freedom many hoped for.

Contact a member of Furley Page Employment team on 01227 763939  for advice about reopening your business.