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The government’s plan to get retail and leisure operators back up and running poses a significant challenge – how can these businesses trade successfully whilst observing social distancing, safeguarding the health and safety of staff and visitors and protecting themselves against health and safety and employment law risks?
Operators have a moral and legal obligation to keep staff and other people entering their premises safe from harm, and Covid-19 is a risk like nothing we have ever seen before.
In some industries, people may have had an expectation of risk when they chose that line of work, but this is not the case for 2020’s retail and leisure workforce.
The timeline has now been confirmed for non-essential retailers to reopen for business with outdoor markets and car showrooms opening from 1 June 2020 and other shops from 15 June 2020.
From a health and safety perspective, a well-documented plan – developed in consultation with health and safety representatives and expert advice – is essential in case the Health and Safety Executive (HSE) or local authority challenges your system. If the HSE deems your measures unacceptable, they could issue an improvement or prohibition notice. The only route of appeal against this is the employment tribunal, which is already facing a backlog of cases to April 2021.
From an employment perspective, getting things wrong could result in employers having to pay out significant sums in respect of claims brought under the UK’s whistleblowing and discrimination laws. These claims are day one rights and if claims are successful, the potential compensation is unlimited. An increase in these types of claims following the pandemic appears to be inevitable.
As a minimum, businesses should:
The current government guidance states that employees should work from home when they can, but if that is not possible then they can return to work unless they are in one of the sectors that has been closed. Public transport should be avoided where possible.
On 11 May, the government published sector-specific guidance to help employers implement safe working practices, including some that apply to retail and leisure: shops and branches; factories, plants and warehouses; offices and contact centres; and vehicles. The specific guidance for retailers was also updated on 25 May.
While the government’s guidance does provide valuable evidence of what will amount to a safe working practice, it is not the end of the matter. Simply following this will not necessarily mean that an employer is immune from claims or that it has sufficiently complied with its wider health and safety obligations. Employers are advised to work closely with their health and safety representatives and trade unions and take specialist advice where needed.
Developing the right plan will be a challenge, but there are some important areas to consider, as outlined below:
Legally, employers have a statutory duty to ensure the health, safety and welfare of their employees so far as reasonably practicable.
Exactly what changes employees find on their return to the workplace will depend on the type of operation and size of store, access to the workplace, the number of other employees and other external factors.
Social distancing in the workplace is one way to protect against Covid-19. However, personal protective equipment may also assist in reducing the risks where social distancing cannot be guaranteed.
Regardless of what measures are being taken (which will need to be detailed in a written risk assessment), employers are going to have to make sure this information is clearly communicated to employees and others who enter the workplace.
Most employees are rightly going to be relying on their employers for reassurance that they are being kept safe and well. In addition, vulnerable employees will need to be identified, and a specific route back to work mapped out for them.
In the leisure sector, operators managed by a Group company will need to establish who is responsible for the return to work plan. They may also need to consider who is making these decisions, considering the up-front costs of some of the recommended measures.
Previously, local authorities have been in charge of applying health and safety laws in retail stores and leisure operations with the HSE taking responsibility for higher risk workplaces, such as distribution centres or warehouses.
However, last week we saw the HSE’s central involvement in the government’s return to workplace campaign, including the chief executive appearing in the government’s daily update briefing and, along with the HSE chair, giving evidence to the work and pensions committee.
It is therefore clear that with the additional funding allowance, the HSE will be taking the lead on both advising businesses on how to comply with their legal requirements but also taking formal legal action against those who fail to comply.
To date we have also seen involvement of other agencies such as the police intervening where workplace safety has been highlighted as a concern, and we expect this to continue.
The recommendation to all retailer and leisure operators is therefore to have the relevant documentation confirming that risk assessments have been carried out and are being adhered to readily available on site. This will include appropriate training and sufficient communication of the measures taken to both employees and others e.g. via websites, emails and signs.
In terms of keeping staff safe during the pandemic, an employer must do all it reasonably can to set up and implement a system of safe work. As a minimum, this will involve a risk assessment tailored to the particular work environment and making sure it is being followed.
A safe system of work will include a focus on home working, social distancing, hygiene and cleaning measures. Where social distancing is impossible, staff should only return to work where this is necessary for the business to continue operating and only then once mitigation measures to manage the transmission risk have been implemented.
The government guidance sets out practical actions for operators to consider, from using notices and visual aids, to reducing the number of workers on shift to enable social distancing. Other examples include limiting visitors, reminding parents to supervise children, encouraging lone shopping and training staff to communicate precautions to visitors.
Hygiene and other procedures should be checked for compliance and failure to follow procedure should be handled promptly, consistently and in line with an operator’s disciplinary procedure.
How to handle refusals to return to work is a commonly asked question amongst operators, and a difficult area due to the conflicting interests of the employer and employee.
It is worth remembering that employers are not obliged to get workers back into the workplace and furlough remains an option for eligible employees.
Furthermore, people (i) who can work from home, (ii) are required to self-isolate or (iii) fall within the category of being ‘clinically extremely vulnerable’, should not be required to return to work.
Those individuals in the latter group are highly likely to be deemed disabled within the meaning of the Equality Act 2010. This means they have the right not to be discriminated against and employers are under a duty to make reasonable adjustments to support them.
Those who fall in the ‘clinically vulnerable’ category may well also be deemed disabled (with the exception of those who are pregnant or over 70). Forcing someone in this category to return to work may lead to claims under health and safety and discrimination legislation.
Where a worker announces their pregnancy before or after returning to work, operators should carry out a new risk assessment promptly. Expectant mothers are protected against risk to health and safety and from unfavourable treatment because they are pregnant.
While pregnant women are not required to shield and can return to work, the government’s advice continues to be that they should take particular care to maintain social distancing and be given the safest roles. Where this is not possible, they should be suspended on full pay.
As a general rule, employees are required to obey reasonable management instructions from their employer and in certain circumstances an employer may be able to take disciplinary action if an employee refuses to return to work.
However, where an employee refuses because they reasonably believe there is a ‘serious and imminent threat’ of danger then they have the legal right not to be dismissed or to suffer a detriment as a result and any dismissal would be automatically unfair.
As to whether this protection applies in the context of Covid-19, this will inevitably feature in tribunal litigation in due course. As things stand, it seems likely that protection will apply in this context, including in respect of commuting to and from work. Employers are strongly advised to take advice on this tricky area to ensure they take the right approach.
Finally, workers and employees who “speak up” and raise concerns about a failure to provide a safe working environment may also be protected against suffering a detriment and dismissal under the current whistleblowing legislation.
To minimise risk in this area, operators are advised to review their internal whistleblowing procedures and ensure staff are aware and managers trained to recognise a disclosure. Listen to our new podcast episode on the latest trends in whistleblowing, including the biggest risk areas and how to handle investigations, for further advice.
If an employee does raise a concern about how safe it is to return to work, these issues are generally best resolved through discussion between the parties, with input from health and safety representatives, HR and where necessary, occupational health.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions
27 May 2020