CILT's legal service provider, Epoq, has provided legal advice to CILT members after the Prime Minister the UK government’s plans for a phased economic recovery from the coronavirus pandemic. 

Subject to coronavirus being kept under control, businesses will be allowed to reopen gradually by sector – and there’s now detailed government guidance for different industries on how to work safely.

The announcement only applied to England, though it seems likely that the other UK nations will take a similar approach, albeit on a different timescale.
Wherever your business is, if your workplace is largely or entirely closed, now is the time to start making plans to reopen. Even if you’re not yet allowed to, it’ll help you to make a quicker and smoother transition when you eventually are.

In the coming weeks we’ll be putting together more detailed guidance on the issues involved, but here we’ll focus on a key issue – health and safety.
You will be ultimately responsible for the safety of your staff when they return. If they contract COVID-19 and it can be traced to your workplace (which is possible if, for example, you experience an outbreak), they could make personal injury claims against you. You could even be vicariously liable for further infections in their household.

You could also be investigated and prosecuted by the Health and Safety Executive – and that applies even where there’s no infection, if you’re found not to be following safe guidelines.

Below are some actions to take to help protect you:

1. Allow homeworking wherever possible
   
   The UK government and all the devolved administrations have said that staff who are able to work from home should continue to do so. This advice seems unlikely to change any time soon.
   
   However, if working from home is jeopardising their health or safety in some way (e.g. it’s having a serious impact on their mental wellbeing), you could give them the option of returning to the workplace if it will help – provided you’ve followed the government guidance (see below).
   
   
2. Read the government safety guidance
   
   As mentioned, there are currently 8 guides on working safely covering a range of sectors. Read the guide(s) appropriate to your business. The full PDF versions (available in each guide under Download this guidance) contain a tick list of potential actions you might need to take.
   
   There’s a poster that you’ll be expected to display in the workplace to show you’ve complied.
   
   The guidance is likely to be amended over time and we recommend that you bookmark the relevant webpage and check it regularly.
   
   
3. Carry out a COVID-19 risk assessment
   
   Complying with the government guidance will not absolve you of liability – you’ll need to show that you’ve carried out a risk assessment that adequately considers the impact of staff returning, and that you’ve carried out all of the actions arising from it.
   
   The government guides give some details on how to do this and also point to guidance from the HSE. You’ll need to consider the key hazards and risks associated with returning to the workplace and provide practical solutions for how they can be removed or reduced. A key objective will be keeping staff at least 2 metres apart wherever possible.
   
   Creating supporting documentary evidence of how you’ve conducted the assessment will be useful if you’re investigated by the HSE or subject to any claim.
   
   Consult with your staff and any relevant trade union before finalising the assessment.
   
   Take care not to let COVID-19 distract you from other safety considerations. In particular, don’t implement unsafe coronavirus solutions – e.g. redistributing work in ways that could lead to stress or physical injury from overwork; or having staff work alone at unsafe locations or times of day.
   
   All employers with over 50 members of staff are expected to publish the risk assessment on their website.
   
   Use a building plan of your workplace to help you if you can’t carry out the assessment in person.
   
   Don’t forget that homeworking staff also need risk assessments, which you can give to them to carry out themselves. These should be reviewed if their circumstances change (e.g. if they move home, change the room they work in, or you give them new equipment).
   
   
4. Check with your insurers
   
   In the event that you’re liable for a coronavirus-related incident, typically employers’ insurance policies do not include a large number of exclusions and an indemnity will normally be provided, although it will always depend on the precise wording of the policy in each case.
   
   Your insurer(s) may have specific requirements about the safety of your staff or keeping the building safe, which will need to be implemented to avoid voiding your policy. 
   
   Check your policy and any supplemental terms to work out the extent of your cover and to ensure you’re meeting all obligations.
   
   If you have a death in service policy for any staff, check your potential liability under it. It could be extensive if individuals contract the virus.
   
   
5. Consider who should return to the workplace and when
   
   Think about how many staff can safely fit in your workplace after completing step 3. Then think about who you can and can’t ask to come back, and how – staggered shifts may be an option.
   
   Avoid inviting vulnerable staff, as this may increase your liability. Similarly, avoid asking those who live with someone vulnerable.
   
   If possible, try to ensure you have a trained first aider and fire marshal on site at all times.
   
   If staff need to take public transport to get to work, read and provide a copy of the government guide
   
   Consider asking for volunteers to return before making a final decision.
   
   
6. Communicate your return plan to your staff before executing it
   
   Share with your staff the steps you’ve taken to ensure their safety and how and when you propose for them to return. Ideally, get their feedback. Tell them how they can communicate any issue to you.