Note on relevant H&S laws for workers working during coronavirus crisis.

Lord John Hendy QC

A note on some of the relevant health and safety law for workers working during the coronavirus crisis.

By Lord John Hendy QC

 The evidence is becoming overwhelming that many employers not involved in essential work have been insisting on staff coming in to work. This increases risk of the spread of coronavirus whilst staff are travelling to and from work.

Once at work many employers are not arranging work so as to preserve the necessary 2 metre social distancing between workstations and for access routes, providing screens where necessary, providing adequate washing facilities or, where required, personal protective equipment such as masks, disposable aprons and gloves.

The requirement to protect staff and others affected by them is not merely a matter of moral duty or good sense, it is a longstanding requirement of the law. There is a great deal of relevant law so this note can only refer to some of the more obvious statutory provisions. The common law also has a lot say on these subjects. The most obvious provisions are those of the Health and Safety at Work etc Act 1974, and regulations made under it and the Employment Rights Act 1996. Union reps and workers should draw these to the attention of law-breaking employers. The Health and Safety Executive and the Local Authority should be notified of breaches.

Relevant legislation includes:

Health and Safety at Work etc Act 1974

Section 2.‚ÄĒ¬†General duties of employers to their employees.

(1)  It 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.

(2)¬†¬†Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular‚ÄĒ

(a)  the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b)  arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c)  the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

(d)¬†¬†so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e)  the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

…

(6)It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

(7)In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsection (4) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

Section 3.‚ÄĒ¬†General duties of employers and self-employed to persons other than their employees.

(1)  It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.

(2)   It shall be the duty of every self-employed person who conducts an undertaking of a prescribed description to conduct the undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

‚ĶSection 4.‚ÄĒ¬†General duties of persons concerned with premises to persons other than their employees.

(1)¬†¬†This section has effect for imposing on persons duties in relation to those who‚ÄĒ

(a)  are not their employees; but

(b)  use non-domestic premises made available to them as a place of work or as a place where they may use plant or substances provided for their use there,

and applies to premises so made available and other non-domestic premises used in connection with them.

(2)  It shall be the duty of each person who has, to any extent, control of premises to which this section applies or of the means of access thereto or egress therefrom or of any plant or substance in such premises to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises, all means of access thereto or egress therefrom available for use by persons using the premises, and any plant or substance in the premises or, as the case may be, provided for use there, is or are safe and without risks to health.

(3)¬†¬†Where a person has, by virtue of any contract or tenancy, an obligation of any extent in relation to‚ÄĒ

(a)  the maintenance or repair of any premises to which this section applies or any means of access thereto or egress therefrom; or

(b)  the safety of or the absence of risks to health arising from plant or substances in any such premises;

that person shall be treated, for the purposes of subsection (2) above, as being a person who has control of the matters to which his obligation extends.

(4)  Any reference in this section to a person having control of any premises or matter is a reference to a person having control of the premises or matter in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).

 Personal Protective Equipment at Work Regulations 1992

Regulation 4 Provision of personal protective equipment

(1)     [Subject to paragraph (1A),] every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

…

(2)     Every relevant self-employed person shall ensure that he is provided with suitable personal protective equipment where he may be exposed to a risk to his health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.

(3)¬†¬†¬†¬† Without prejudice to the generality of paragraphs (1) and (2), personal protective equipment shall not be suitable unless‚ÄĒ

(a)     it is appropriate for the risk or risks involved, the conditions at the place where exposure to the risk may occur, and the period for which it is worn;

(b)     it takes account of ergonomic requirements and the state of health of the person or persons who may wear it, and of the characteristics of the workstation of each such person;

(c)     it is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed;

(d)     so far as is practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk;

(e)     it complies with any legal requirement which is applicable to that item of personal protective equipment.

(4)     Where it is necessary to ensure that personal protective equipment is hygienic and otherwise free of risk to health, every employer and every relevant self-employed person shall ensure that personal protective equipment provided under this regulation is provided to a person for use only by him.

…

The Workplace (Health, Safety and Welfare) Regulations 1992

9.(1) Every workplace and the furniture, furnishings and fittings therein shall be kept sufficiently clean.

…

10.(1) Every room where persons work shall have sufficient floor area, height and unoccupied space for purposes of health, safety and welfare.

…

11.(1) Every workstation shall be so arranged that it is suitable both for any person at work in the workplace who is likely to work at that workstation and for any work of the undertaking which is likely to be done there.

…

17.(1) Every workplace shall be organised in such a way that pedestrians … can circulate in a safe manner.

…

21.(1) Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, shall be provided at readily accessible places.

(2)¬†Without prejudice to the generality of paragraph (1), washing facilities shall not be suitable unless‚ÄĒ

…

(c)they include a supply of clean hot and cold, or warm, water (which shall be running water so far as is practicable);

(d)they include soap or other suitable means of cleaning;

(e)they include towels or other suitable means of drying;

…

The Management of Health and Safety at Work Regulations 1999

3.(1)¬†Every employer shall make a suitable and sufficient assessment of‚ÄĒ

(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…

…

(3)¬†Any assessment such as is referred to in paragraph (1) ‚Ķ shall be reviewed by the employer ‚Ķ who made it if‚ÄĒ

(a)there is reason to suspect that it is no longer valid; or

(b)there has been a significant change in the matters to which it relates;

and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.

…

  1. Where an employer implements any preventive and protective measures he shall do so on the basis of the principles specified in Schedule 1 to these Regulations.

5.(1) Every employer shall make and give effect to such arrangements as are appropriate, having regard to the nature of his activities and the size of his undertaking, for the effective planning, organisation, control, monitoring and review of the preventive and protective measures.

(2) Where the employer employs five or more employees, he shall record the arrangements referred to in paragraph (1).

  1. Every employer shall ensure that his employees are provided with such health surveillance as is appropriate having regard to the risks to their health and safety which are identified by the assessment.

7.(1) Every employer shall … appoint one or more competent persons to assist him in undertaking the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions…

SCHEDULE 1

GENERAL PRINCIPLES OF PREVENTION

[This Schedule specifies the general principles of prevention set out in Article 6(2) of Council Directive 89/391/EEC) for the purposes of regulation 4 above]

(a)avoiding risks;

(b)evaluating the risks which cannot be avoided;

(c)combating the risks at source;

(d)adapting the work to the individual, especially as regards the design of workplaces, the choice of work equipment and the choice of working and production methods, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate and to reducing their effect on health;

(e)adapting to technical progress;

(f)replacing the dangerous by the non-dangerous or the less dangerous;

(g)developing a coherent overall prevention policy which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the working environment;

(h)giving collective protective measures priority over individual protective measures; and

(i)giving appropriate instructions to employees.[There are other specific regulations too numerous to set out here that deal with specific kinds of workplace and make specific provision, such as the Construction (Design and Management) Regulations 2015 (which, for example, by regulation 33, require the provision of adequate washing facilities.]

 

Employment Rights Act 1996

Section 44  Health and safety cases

(1)¬†¬†¬†¬† An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that‚ÄĒ

(a)     having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities,

(b)¬†¬†¬†¬† being a representative of workers on matters of health and safety at work or member of a safety committee‚ÄĒ

(i)     in accordance with arrangements established under or by virtue of any enactment, or

(ii)     by reason of being acknowledged as such by the employer,

the employee performed (or proposed to perform) a functions as such a representative or a member of such committee,

(ba)     the employee took part (or proposed to take part) in consultation with the employer pursuant to the Health and Safety (Consultation with Employees) Regulations 1996 or in an election of representatives of employee safety within the meaning of those Regulations (whether as a candidate or otherwise),

(c)¬†¬†¬†¬† being an employee at a place where‚ÄĒ

(i)     there was no such representative or safety committee, or

(ii)     there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means,

he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,

(d)     in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e)     in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

(2)     For the purposes of subsection (1)(e) whether steps which employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.

(4)     . . . this section does not apply where the detriment in question amounts to dismissal (within the meaning of [Part X]).

[s.100 in Part X provides similar protections against dismissal for the above reasons which will be regarded as automatically unfair.]

 

[It should be noted that s.64  Employment Rights Act provides that, on certain triggering conditions, an employee who is suspended from work by his employer on medical grounds is entitled to be paid by his employer remuneration while he is so suspended for a period not exceeding twenty-six weeks. All that is necessary for the triggering conditions would be for the Secretary of State to designate ss. 2-4 Health and Safety at Work Act as the basis of then requiring the Health and Safety Executive to publish a Code of Practice under those sections requiring or advising employers to suspend workers where government advice was that they should self-isolate and not attend work. The government has elected not to use this obvious machinery.]

 

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