10 steps to follow to ensure a safe return to the workplace for staff

The government’s success in persuading everyone to stay at home will present employers with the considerable challenge of opening up workplaces in an acceptably safe manner and in persuading everyone that it’s safe to come back.

Here I explain the key steps travel businesses should take to ensure that the eventual return of staff to the workplace proceeds smoothly and in compliance with the law.

1. Learn from others

Many employers are already re-opening their workplaces. There is an opportunity to learn from their experiences. Make use of business forums and the news to help you formulate your approach.

2. Carry out a risk assessment

Employers’ health and safety duties are set out in legislation and in common law (case law). The overarching principle is that employers must take reasonable care for the safety of their employees but this does not mean liability for everything that goes wrong.

Employers owe duties under the common law to protect the health and wellbeing of their employees. These include ensuring a safe place of work and a safe system of work.

Breach of these duties can result in compensation claims for injury or illness but they are not absolute in nature. What is “reasonable” will vary depending on the circumstances. In the current context, “what is reasonable” is the big unanswered question, but case law suggests:

• the common practice of other employers in the same industry may determine what is reasonable
• but a failure to follow common practice is not necessarily negligent, if (for example) there is conflicting evidence as to whether common practices are effective
• employers must allow for the fact that employees may be heedless of the risks, particularly where such risks are encountered on a regular basis (as they are in the current Covid-19 crisis). This will involve taking reasonable steps, not only to instruct employees on safety procedures, but also to ensure that the procedures are followed
• employers are under a duty to warn of dangers, even where these are obvious; for example, in the Covid-19 context this would include advice on hand washing and distancing from other members of staff.

The principal legislation (but not the only one) which sets out the framework within which employers must operate is the Health and Safety at Work Act 1974. This requires employers to ensure, so far as reasonably practicable, the health, safety and welfare of their employees, and to enact a written health and safety policy as to how this is to be achieved. There are criminal penalties for employers and individual directors or managers who are culpable.

The statutory duties also extend to the requirement to provide protective equipment, possibly including face masks. If employees do not obey instructions to take precautions such as hand washing or the use of safety equipment, the employer will not be liable for damage suffered by those employees as a result.

Central to these duties is a requirement for employers to carry out a risk assessment of the health and safety risks posed by Covid-19 in their workplace and to determine the reasonable measures that need to be taken to address risks identified. This requirement is applicable to all employers irrespective of their size.