FREE CHAPTER from ‘Covid-19 and Health and Safety Law – The Essential Guide’ by Edward Hetherington

CHAPTER ONE – COVID-19 AND RISK ASSESSMENTS

Risk assessments are now well-established as a key obligation of responsible employers. All employers have a specific legal duty to assess the risks to the health and safety of employees (and risks to the health and safety of persons not in their employment) to which they are exposed while they are at work.

The underlying statement of an employer’s obligation within the Health and Safety at Work etc Act 1974 is that “[iIt shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”¹

Taking the time to produce a thorough and practical assessment of the hazards involved in each aspect of the workforce’s operation, plus devising and implementing a coherent and protective series of measures to manage or remove such hazards, is the first step in ensuring compliance with that key obligation within health and safety law².

The statutory instrument which specifically make risk assessments a legal requirement is the Management of Health and Safety at Work Regulations (MHSWR) 1999. Regulation 3 provides (so far as is relevant) that:

“(1) Every employer shall make a suitable and sufficient assessment of—

(a) the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…”

There is very little guidance in caselaw³ as to how risk assessments should be written, but there is an Approved Code of Practice which accompanies the 1999 Regulations. By virtue of s17 of the HSWA 1974 that Code of Practice is admissible in criminal proceedings and failure to comply is prima facie evidence of breach of duty.

If a business is visited by HSE inspectors, either during a spot-check or following an incident on their premises which attracts the attention of the inspectors, is it highly likely that one of their first requests will be to see the risk assessment files held by the company. The ability to comply, and the quality of the documentation therein, is likely to set the tone for the subsequent interactions between the parties.

When drafting a risk assessment, an employer is well-advised to consult employees, union reps⁴ and (if applicable) their occupational health or health and safety representatives. Employees are far more likely to appreciate why procedures are in place and to follow them if they have been given a voice in developing those health and safety practices in the work environment.

However, that is not to say that formal and costly consultation is required before every risk assessment is concluded. Some consultations are specific to one particular role or task and it would be impractical to expect employers to gain staff approval for every minor policy which is devised. It is sufficient that consultation should form part of the general risk assessment process. In practice, most employers conduct a general assessment to identify the key risks and control measures, and then a second brief assessment of the risks by the employees about to embark on the job.

So what difference does the COVID pandemic make to this settled legal position? First, any business needs to start by updating their risk assessment to manage the risk of coronavirus in their business. This will help employees and others to understand what they should do to work safely and protect other people who visit work premises.

This update can either be done by expanding and amending an existing risk assessment, or by creating an entirely new addendum or distinct risk assessment to cover the particular perils associated with the pandemic and the steps to be taken to manage them.

If you have fewer than five employees, you don’t have to write anything down, but it might help if you do. A risk assessment is not merely a theoretical exercise, it must be possible to demonstrate that it has taken place and a documentary record is the easiest way to achieve this.

As an employer, there is a legal duty to protect people from harm. This includes taking reasonable steps to protect workers and others from coronavirus. What constitutes “reasonable steps” will vary from business to business, but against a backdrop of unprecedent public health measures such as the national lockdowns imposed by the government, it is clear that a significant level of assessment and action is required by most businesses.

Within a risk assessment an employer should look at what work activity or situations might cause transmission of the virus, who could be at risk, how likely it is that someone could be exposed and then act to remove the activity or situation, or if this isn’t possible, to control the risk.

A Public Health England report entitled ‘COVID-19: Review of Disparities in Risks and Outcomes’⁵ has shown initial evidence to suggest that some groups of people may be at more risk of being infected and/or an adverse outcome if infected. Groups at particular risk appear to be those from Black and Minority Ethnic (BAME) backgrounds, older people and those living in disadvantaged areas. Employers should consider this in a risk assessment, although it will obviously be the case that some of those groups are easier to protect through workplace measures than others.

Practical measures can include putting in place social distancing measures, staggering shifts and providing additional handwashing facilities. Moving those employees in “at risk” groups away from customer-facing roles will be one potential way of reducing risk, but equally steps such as the provision of appropriate PPE might be sufficient to prevent taking such a drastic step. Whatever steps are taken, they should match the measures which have been identified and justified in the risk assessment.

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