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The Independent Automotive Aftermarket Federation

Do we have to shut our workplace after a confirmed case of COVID-19 among our workforce?

Date: Thursday 03 December 2020

Our colleagues at Xecutivesearch have brought to our attention the following article, put together by Mondaq, which outlines what is recommended should an employee be confirmed as having COVID-19.

There is no legal requirement to close a workplace. However, you may need to close part of the workplace temporarily to undertake a deep clean, because there is a risk of contracting coronavirus from contaminated surfaces and the infected worker's personal belongings or personal waste. You should also consider your health and safety obligations towards others.

How do we perform a deep clean?
The government has published guidance on cleaning non-healthcare workplace settings after an individual with a confirmed case of coronavirus infection has left the setting. In summary, this confirms:

Personal protective equipment (PPE)
The person performing the deep clean must, as a minimum, wear disposable gloves and an apron. They should wash their hands with soap and water for 20 seconds after all PPE has been removed.

If a risk assessment of the setting indicates that a higher level of virus may be present - for example, where more than one worker has confirmed coronavirus - then additional PPE to protect the cleaner's eyes, mouth and nose may be necessary. The local Public Health England (PHE) Health Protection Team can advise on this.

Cleaning equipment
The person performing the deep clean should use disposable cloths or paper roll and disposable mop heads. The rule is 'one site, one wipe, in one direction' before disposing and replacing the cleaning equipment. Please see waste disposal guidance below.

Level of cleaning and disinfection
The level of cleaning differs depending on the amount of time the worker with confirmed coronavirus has spent on or near them:

Detergent choice
The cleaning fluid should be one of the following:

Wash items using the warmest water setting and dry items completely. Dirty laundry that has been in contact with an unwell person can be washed with other people's items. To minimise the possibility of dispersing virus through the air, do not shake dirty laundry prior to washing. Clean and disinfect anything used for transporting laundry with your usual products, in line with the cleaning guidance above.

Personal waste from individuals with confirmed coronavirus and waste from cleaning of areas where they have been - including PPE, disposable cloths and used tissues - should:

What are an employer's duties regarding the health and safety of employees?
All employers have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare of all of their employees. The duty, which includes the provision of information, instruction, training and supervision, extends to risks arising from:

In addition, various regulations impose specific statutory duties in respect of the health and safety of specific workers, and/or in specified situations. These include, but are not limited to:

It is the duty of every employer to take 'reasonably practicable' steps to eliminate identified risks. This means that, as a minimum, an employer must:

Although it is not compulsory for micro-employers, most employers should record these steps in a written risk assessment. Some employers may wish to create an entirely new risk assessment, while others may prefer to update an existing risk assessment to take account of the new risks that may arise from exposure to coronavirus within the workplace. In addition, the Government is encouraging employers to:

Should we update our risk assessment following a confirmed case of coronavirus?
This depends on whether there is reason to suspect that the individual worker(s) contracted coronavirus in the workplace. If there is no reason to suspect workplace transmission, then there may be nothing to be gained from updating your risk assessment. If there is reason to suspect workplace transmission - for example, where multiple workers who work in close proximity have contracted coronavirus - then it is sensible to update the risk assessment. There may be lessons that can be learned from the workplace transmission, and steps the employer can take to reduce the risk of transmission in the future.

Do we have a duty to eliminate or control every risk posed by coronavirus?
The duty of every employer is to take 'reasonably practicable' steps to eliminate identified risks. Determining what is 'reasonably practicable' will be a balancing act, taking into account:

Any perceived or reported failure to take appropriate steps can give rise to investigation, interview and possibly prosecution by HSE or the appropriate local authority. Safety investigations can be time-consuming and uncomfortable, often highlighting diverse and unrelated concerns that lead to further questions. Safety prosecutions set a high bar; it is for the employer to prove that they have taken all practicable steps, almost a case of guilty until proven innocent.

A thorough and well-considered risk assessment provides a sounds basis from which you can respond to an investigation and defend any prosecution that might result.

Do we need to consult with staff when planning for their return to work after a confirmed case of coronavirus?
Yes, every employer has the legal duty to consult with employees regarding health and safety matters. What is required depends on whether the particular workplace is:

The consultation must take place in good time, on matters relating to the employee's health and safety at work, including but not limited to:

With one exception, explored below, breach of these duties does not confer any standalone right of action in civil proceedings. The HSE can investigate and enforce any breach of the duty to consult, although in practise they rarely do so. Further, a complaint by an employee that the employer has failed to consult them about health and safety could, depending on the circumstances, amount to a protected disclosure for the purposes of whistleblowing protection. If so, the employee will be protected from detriment, and any dismissal motivated by that disclosure would be automatically unfair, regardless of length of service, and any compensation is unlimited and can include an award for injury to feelings.

Do safety representatives have any special protection?
Yes, trade union safety representatives and elected employee safety representatives have special protection afforded to them in respect of their duties. In particular:

They have the right to take a 'reasonable' amount, as opposed to what is 'necessary,' of paid time off to attend training and fulfil their functions.

The employer must provide the facilities and any assistance reasonably required for health and safety representatives to carry out their role.

They are granted special protection from suffering detrimental treatment or being dismissed for reasons relating to their safety representative duties. In addition, any dismissal motivated by their being a safety representative would be automatically unfair, regardless of length of service.

Can we require staff to return to work if they feel it is unsafe to do so?
The answer to this depends on the circumstances, including:

From the employer's perspective, requiring an employee to return to work might be seen as a reasonable workplace instruction. However, in certain circumstances, an employer's staff may have the legal right to disobey that instruction and refuse to attend work, if they feel it is unsafe to do so.

In particular, employees are protected from detrimental treatment, and any dismissal is automatically unfair, irrespective of length of service, if this is motivated by certain health and safety grounds, including but not limited to, the fact the employee:

It is crucial to note that, if the worker 'reasonably believes' that there is any serious or imminent danger, this means that they can leave, refuse to return or take appropriate steps to protect themselves and others. This means that the employee's knowledge of the health and safety risks and the measures taken by the employer to eradicate or control those risks, are relevant in establishing whether the employee's fear amounts to a 'reasonable belief'.

When considering an employee's fear that a workplace is unsafe, one factor may be the disparity between the recommendations of the World Health Organisation and the UK Government's guidance. We anticipate a rise in litigation exploring some of these issues in the coming months, and the trade unions are very likely to support such claims if necessary.

Further, the protection of the whistleblowing legislation may be triggered if a worker makes a complaint to their employer, or in some limited circumstances to a third party, believing this to be in the public interest, that in their reasonable belief:

If deemed whistleblowing, this would, in turn, give the worker protection from detriment and render any dismissal motivated by that protected disclosure an automatically unfair dismissal, meaning no qualifying period of service would be required. The compensation for a whistleblowing claim is unlimited, so the consequences of making a mistake can be costly.

Against this background, when faced with an employee who is reluctant to return to work due to health and safety fears, it is best practice for an employer to open up a constructive dialogue with the employee to establish what their concerns are and whether the employer has already taken, or can take, steps to alleviate those concerns. If an agreement cannot be reached, then specific advice should be sought.

Do confirmed coronavirus cases have to be reported under RIDDOR?
The question of which cases of coronavirus have to be reported by the employer under RIDDOR is currently a disputed topic of debate. These complex issues are explored in more detail in this article.

Can we ask employees to sign a waiver against injury or death from contracting coronavirus?
There is little value in asking an employee to sign such a waiver because various statutory provisions limit their effectiveness in the employment context. In particular:

Can we require other staff to take a coronavirus test?
Testing is currently restricted, but it may be possible to secure a private coronavirus test at the employer's expense. However, the employee must give their consent to undertake a medical procedure, such as a coronavirus test, and it is unlikely that the employment contract will grant the employer the right to insist on such testing.

This means that the employer's approach should be to encourage staff to engage in coronavirus testing when this is available, rather than trying to force them to do so. The introduction of workplace-based coronavirus testing programmes is very complex and specific advice should be sought.

If an employer intends to retain or process records that relate to coronavirus testing, there are also data protection implications that need to be considered, because health records are special category personal data, which means additional safeguards must be taken to protect it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.