What is the over-riding statutory duty for employers to ensure the health and safety of employees?
It is worth pointing out that, despite all the guidance, survey results and other advice about managing Covid-19 H&S risk in the workplace, the law has not been changed. None of the guidance is codified by regulation/legislation, which means that you are managing this risk in the context of existing H&S law.
In very simple terms, HASWA74 requires employers to take “all reasonably practicable steps” to ensure the health and safety of its employees (and anyone else affected by your business).
“Reasonably practicable” means to balance risk reduction against the time, money and effort required. If measures are grossly disproportionate, you wouldn’t be expected to take them, but there is a strong presumption in favour of taking any steps which will protect workers.
As part of managing the health and safety of your people, you must control the risks in your workplaces. To do this, look for what might cause harm to people while they work and decide whether you are taking reasonable steps to prevent that harm. This related duty under MHSWR is to ensure you undertake a “suitable and sufficient assessment of risks.”
Related FAQs
In the event that the worst happens and contractor insolvency occurs, there are a number of steps which the employer should take immediately:
- Confirm that insolvency has actually occurred and the type of insolvency (for example liquidation or adjudication) – actions taken based on rumours can have adverse consequences
- Secure the site and carry out an audit of the plant, equipment and materials present – this may extend to changing the locks on site in order to prevent overzealous contractors and sub-contractors seeking to return and take what they see as their possessions. The building contract may contain a provision that these are the employer’s property, but they can be difficult to recover if they are not within the employer’s possession – possession is 9/10ths of the law!
- Ensure that there are adequate insurance and health and safety arrangements in place for the site – these would usually be dealt with by the contractor and therefore may no longer be in place, so alternative arrangements may be required
- Ensure that any further payments to the contractor are stopped pending a more detailed review
- Consider whether any off-site materials have already been paid for and can be secured. This can however be difficult in practice where the materials are not physically within the employer’s possession
In addition, there are also a number of further actions which the employer should consider in the slightly longer term:
- Investigate the options available and ascertain the cost of completing the works to assist in deciding how best to proceed
- Consider whether termination of the contractor’s employment under the building contract is required, and if so take the necessary steps in accordance with the building contract
- Consider whether there are any bonds or guarantees in place upon which the employer can rely, and if so assess their terms as to whether and how to make a claim
- Make arrangements to complete the works – as a general rule of thumb the cost of completing the works may increase by around 30% if it is necessary to get a replacement contractor
- Consider whether direct payment to subcontractors is possible or desirable
- Although we would say this(!) we would strongly recommend taking legal advice, as insolvency and its implications are complex and it is easy to inadvertently fall foul of the various different requirements
This guidance from the Chief Coroner applies to reports of death and coroner investigations in England and Wales. It is to assist coroners in continuing to exercise their judicial decisions independently, in accordance with the law, and during the extraordinarily pressured events being faced at present.
If such testing is regarded as a “reasonably practicable step” which has been identified as an appropriate control following a risk assessment then it is something you can do.
Although you can’t physically force someone to have something intrusive done, this is very likely to be a reasonable management instruction and therefore if someone refuses to have this done as a condition of entry into the work place then disciplinary action may follow.
Where this is something that is required of employees, employers should be letting their staff know that this is one of a number of measures that are being introduced into the workplace for their own safety. If the employer can explain, in advance of the return, why temperature checks need to be taken, what the consequences of the results will be- i.e. will they be sent home if over a certain temperature, whether this data will be stored (and if the sole purpose is to determine whether or not they are fit to attend work on a particular day then why are they being stored), and the fact that temperature checks are a requirement of entry to company premises for everyone, then there shouldn’t be significant resistance to this measure.
Large scale temperature checks have in some businesses become part of the “new normal” working environment.
Most rent suspension clauses in commercial property leases are unlikely to come to the assistance of the tenant. These clauses normally apply only where the premises has suffered substantial physical damage and are, as a consequence, incapable of being occupied, used or accessed. The coronavirus pandemic does not involve any physical damage to a property, loss from the crisis will be purely financial. Such losses then will not be covered by the landlord’s buildings insurance policy in a way that will allow a tenant to claim rent suspension.
A licence to occupy premises is not an interest land and operates as a commercial contract between the parties that enter into it. Licences tend to be put in place to cover short periods and consequently they are generally a lot more flexible than commercial leasing arrangements. To that extent occupants under licences should review the contract to establish whether or not there are any provision allowing them to terminate on notice to the Licensor.
Occupants under licences that are granted for longer periods without the option to terminate may try to argue that the contract has frustrated because they are effectively unable to occupy.