Can we require employees who have been shielding to return to work at the end of the 12 week shielding period?

The basics of health and safety law requires that employers take “all reasonably practicable steps” to ensure workers’ safety and that a suitable and sufficient assessment of risk is undertaken. It is the individual assessment of Covid-19 risk in each workplace that will be central. Employers will be required to conduct a robust risk assessment and then, following the hierarchy of controls, put robust processes and safeguards in place to address those risks.

UK government guidance and HSE advice is continually evolving, which in practice means that any risk assessment will need to be reviewed very regularly as that guidance develops. There is flexibility for individual businesses within the overall government framework and there will need to be a process of evaluation to ensure that the measures in place continue to meet the requirements.

The starting point of avoid, eliminate and control means looking at individuals continuing to work from home where possible (the fewer the number of people back in the workplace the lower the risk), and if not look at risk management, which leads to administrative controls – i.e. changing work practices before ending up at PPE. PPE is generally seen as control of last resort but in practice – facemasks, disposable gloves and constant prompts to wash hands for example.

In terms of changing working practices, employers should be thinking about:

• the workspace and how this is laid layout
• how do we make sure it is kept clean and hygienic
• how do we keep people apart
• how can we use toilets, canteens or other shared spaces/facilities safely
• how do we promote and enable higher levels of workplace hygiene
• if we are going to rely on PPE – can we get it, and is it suitable
• what about limiting customer interactions
• will there be enough first aiders on site
• can we manage fire safety, deliveries etc
• what about higher risk workers
• should work tools and equipment be allocated on an individual basis to employees.

These decisions need to be recorded and clearly communicated to staff members.

You also need to consider other aspects of data protection.

Be proportionate – only gather and use Covid-19 data where you need to.

Keep data to a minimum – you shouldn’t gather more data than you need. You need to know someone has Covid-19 but you don’t need to know all their symptoms. Data minimisation also applies to who gets access to the data. It’s unlikely that a spreadsheet, accessible to everyone updating them on the health status of all employees, would be appropriate. Data should be shared on a need to know basis. You need to balance the privacy of individuals against your duty of care to be responsible with regards to the data of your employees, visitors, customers and suppliers.

Keep it up to date – make sure you update data. People’s health status will change and if you keep a record of this, you need to  make sure it is accurate and up to date (although this doesn’t mean you should batter individuals with constant requests for updates on health status. Again, be proportionate).

Identify individuals only when you need to – although you will need to know who has Covid-19, that doesn’t mean you need to tell everyone in the organisation. As soon as you can, you should remove personal data from any information you gather. For example, you might want to update employees on the health status of their fellow employees but you probably don’t need to name individuals and even if you feel it is necessary, you should keep the information you provide to a minimum. Removing personal identifiers in a document is also a good data security technique.

Keep the Covid-19 health data secure – Covid-19 data will be special category data and deemed high risk. This means that if you have a breach of this data you will need to notify it to the ICO. A breach could happen by someone losing a print-out of the names of Covid-19 employees, customers or visitors. It could also happen if you set access rights to lists of Covid-19 sufferers open to more people than need to know the information. The risk of ICO enforcement action increases with the potential harm the disclosure could cause. Although the ICO has indicated that it will be understanding about the impact of Covid-19 on normal operations, this doesn’t mean that they will not prosecute you if the breach is sufficiently serious.

Destroy the data once you don’t need it – Finally, of course, make sure that you delete data at the end of your needs. This might last longer than the pandemic, for example if you have an insurance claim or ongoing litigation. If you do need to keep it, consider whether or not you can delete some of the data to minimise what you hold.

In the unfortunate event that there will be a significant number of deaths, planning will fall to the local resilience forum; which includes all relevant local organisations and statutory bodies, who will have prior experience in working in excessive death scenarios.

It is for the coroners to ensure that they are familiar with the local resilience forum plans and discussions required. This will include issues regarding storage capacity and post-mortem examination capacity.

Yes, this is very likely to amount to a reasonable management instruction which is put in place for public health reasons. Employers should make it clear to their employees that this is something they are required to do and that if they fail to do so this may lead to disciplinary action.

This is unlikely. Frustration is a doctrine rarely used as a way of getting out of leases. It operates to bring a lease to an early end because of the effect of a supervening event. It is then not a concept readily applicable to a situation where one party is looking to get out of a lease. To be able to argue the doctrine of frustration, you must be able to demonstrate that something unforeseeable has happened that makes it impossible to fulfil the lease and unjust to hold a party to its obligations.

This is not something that can be demonstrated easily.

There was a case in the High Court last year when the doctrine of frustration was looked at in a case involving the European Medical Agency.

The court found that Brexit did not frustrate EMA’s lease. EMA was granted leave to appeal that decision to the Court of Appeal, but unfortunately, the parties settled out of court so the arguments were not tested in the higher court.

Another reason why frustration is likely to fail is an argument that, whilst the current lockdown may force closures to businesses and whilst such closures maybe for a lengthy period, such closures will only be temporary.