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Welcome to the
BHTA Webinar
‘Health & Safety Law Conundrums
during the Pandemic’
With Dr Simon Joyston-Bechal
22 May 2020
Webinar for BHTA
Health & Safety law conundrums
during the pandemic
22 May 2020
Dr Simon Joyston-Bechal
Speaker:
Dr Simon Joyston-Bechal
Turnstone Law, Director
sjb@turnstonelaw.com
Mobile: 07880 684 781
Overview
Health & safety law conundrums during the
pandemic
• Could we be prosecuted for COVID-19 exposures?
• Managing difficult decisions relating to COVID-19
• Can we keep operating if we are struggling with social distancing?
• Working from home – how far do our duties extend?
• Returning to work
• Reporting under RIDDOR
• Q&A
Could we be prosecuted for COVID-19
exposures?
Criminal H&S law obligations:
Health and Safety at Work Act 1974
• All reasonably practicable steps to safeguard
employees and non-employees, includes:
• keeping up to date with Covid-19
• planning and implementing all reasonably
practicable risk reduction measures
• Following Govt guidance where applicable
Could we be prosecuted for COVID-19
exposures?
Criminal H&S law obligations:
Management of Health and Safety at Work
Regulations 1999
• “suitable and sufficient” risk assessment:
• in writing if 5 or more employees
• must be reviewed/updated when circumstances
change
Could we be prosecuted for COVID-19
exposures?
Criminal H&S law obligations:
Personal Protective Equipment at Work Regulations
1992
• Duty to provide suitable PPE, which must be:
• appropriate for risks and conditions
• capable of fitting correctly
• assessed as suitable and effective, so far as reasonably
practicable, to prevent or adequately control the risk
• maintained, cleaned and replaced as appropriate
• adequate information, instruction and training
• take all reasonable steps to ensure PPE properly used
Could we be prosecuted for COVID-19
exposures?
• HSE website: “take a flexible and proportionate account of the
risks and challenges arising from the pandemic”
• Can you be reassured that it will be hard to prove that infected
workers contracted the virus in the workplace rather than
elsewhere?
• Can you assume everyone in same boat so won’t be prosecuted?
• Consider fear, anxiety of staff and their household
members
• Deaths will occur
• What if operating without adequate mitigation?
Could we be prosecuted for COVID-19
exposures?
TUC report on returning to work (27 April 2020):
“The HSE must act quickly to apply sanctions to
employers that do not risk assess for Covid-19 or fail
to provide safe working arrangements. Employers
must be made aware of the consequences of refusing
or failing in their health and safety responsibilities –
including prosecution and the forced closure of
businesses.”
Could we be prosecuted for COVID-19
exposures?
Govt guidance - Working safely during COVID-19 (11
May 2020):
• “should share the results of your risk
assessment with your workforce. If possible,
you should consider publishing the results on
your website (and we would expect all
employers with over 50 workers to do so.)”
Could we be prosecuted for COVID-19
exposures?
Govt guidance -
Working safely during
COVID-19 (11 May
2020):
• “notice you should
display in your
workplace to show
you have followed
this guidance.”
Could we be prosecuted for COVID-19
exposures?
Health and Safety at Work Act 1974
• “For the purposes of this Part risks arising out of or in connection
with the activities of persons at work shall be treated as
including risks attributable to the manner of conducting an
undertaking, the plant or substances used for the purposes of
an undertaking and the condition of premises so used or any part
of them.” Section 1(3)
• Does HSWA include public health risks attributable to spread of a
community-acquired virus amongst the non-healthcare/laboratory
workforce?
• Leaves open to challenge:
• Applicability of HSWA and all subordinate Regulations
• HSE and EHO power of enforcement
Managing difficult decisions relating to
COVID-19
Some difficult decisions:
• Can we keep operating if we are struggling with social
distancing?
• How far can we balance commercial losses against
accepting shortfall from ideal H&S protection?
• Should we pay for an additional protective measure?
• Can we tell staff to return if their commute is crowded?
• Can we make staff share work vehicles?
Managing difficult decisions relating to
COVID-19
What do you have to do?
• Follow Government guidance and relaxation steps for your sector
• Revise/renew/create relevant risk assessments for Covid-19 to
deal with work/return to work
• Plans must identify hazards and set out mitigation measures
• Should take into account special circumstances of your
organization/workers/3rd parties
• Risk assess each difficult decision
• “Would it have been reasonably practicable to have done more?”
• Necessity is part of “reasonable practicability”
Managing difficult decisions relating to
COVID-19
How to protect yourself from blame if you get it
wrong?
• Balance commercial decisions against H&S benefits (cost only
succeeds as an excuse if jury agree it renders a precaution “not
reasonably practicable”)
• Be aware you may get it wrong – have foresight of hindsight bias
• Benefit of written risk assessment or record to demonstrate the
balancing decision making
• Role of a specialist lawyer and protection of legal privilege
Can we keep operating if we are
struggling with social distancing?
PHE Guidance for employers (updated 7 April 2020)
• “where it is not possible to remain 2 metres apart,
staff should work side by side, or facing away from
each other, rather than face to face if possible”
• “where face-to-face contact is essential, this should
be kept to 15 minutes or less wherever possible”
Social distancing – how far do we have
to go?
HSE comments at Work and Pensions Select
Committee 11 May 2020:
“It isn’t as if there is a sort of bright shield of 2m that’s
around everybody and if ever that’s breached then you
are unsafe and as long as it’s in place then you’re
definitely safe.” Sarah Albon, Chief Exec, HSE
Social distancing – how far do we have
to go?
HSE comments at Work and Pensions Select
Committee 11 May 2020:
“The 2m rule .. is not sort of like an immediate once you go below
2m that’s it, it’s a very dangerous situation. It’s a function of both
distance and duration. So yes, the risk will increase if you get closer
to someone. But if you’re close to somebody for a short period of
time, then you can manage that risk. Similarly the orientation
between people is quite important. So there is a big difference
between two people facing each other and two people with their
backs to each other.” Prof Andrew Curran, Chief Scientific
Adviser and Director of Research, HSE:
Can we keep operating if we are
struggling with social distancing?
Govt guidance: Working safely during COVID-19 (11 May 2020)
• Work through steps in order
• “Where the social distancing guidelines cannot be followed in full,
in relation to a particular activity, businesses should consider
whether that activity needs to continue for the business to
operate, and if so, take all the mitigating actions possible to
reduce the risk of transmission between their staff.”
• “if people must work face-to-face for a sustained period with more
than a small group of fixed partners, then you will need to assess
whether the activity can safely go ahead. No one is obliged to
work in an unsafe work environment.” [page 5]
Returning to work
Face masks:
• Govt guidance - Working safely during COVID-19 (11 May
2020):
• “Workplaces should not encourage the precautionary use
of extra PPE to protect against COVID-19 outside clinical
settings or when responding to a suspected or confirmed
case of COVID-19”
• “Unless you are in a situation where the risk of COVID-19
transmission is very high, your risk assessment should
reflect the fact that the role of PPE in providing additional
protection is extremely limited”
Returning to work
Face masks:
• Govt guidance - Working safely during COVID-19 (11 May 2020):
• “Supplies of PPE, including face masks, must continue to be
reserved for those who need them to protect against risks in their
workplace, such as health and care workers, and those in
industrial settings like those exposed to dust hazards.”
• “It is important to know that the evidence of the benefit of using a
face covering to protect others is weak and the effect is likely to
be small, therefore face coverings are not a replacement for the
other ways of managing risk, including minimising time spent in
contact, using fixed teams and partnering for close-up work, and
increasing hand and surface washing.”
• May nonetheless be useful mitigation and reassurance
• Watch for U-turn by Govt once healthcare supplies secured
Can we keep operating if we are
struggling with social distancing?
Risk assessment balancing exercise to consider:
• Latest guidelines (not just England/UK)
• Alternative means of operating
• Other mitigation:
• small fixed teams (“cohorting”)
• duration of exposure
• PPE or other barriers
• ventilation
• hand washing
• Feedback from consulting employees and/or their representatives
• Results of antibody testing when available
• Necessity
Working from home – how far do our
duties extend?
• Health and Safety (Display Screen Equipment)
Regulations 1992
• Prioritise and balance life and death decisions,
common musculo-skeletal disorders and DSE
technicalities
• Consider lone worker issues
• Keeping in touch and psychological support
• Consult with insurers
Working from home – how far do our
duties extend?
• HSE website:
– For those people who are working at home on a long-term basis, the
risks associated with using display screen equipment (DSE) must be
controlled. This includes doing home workstation assessments.
– However, there is no increased risk from DSE work for those working
at home temporarily. So in that situation employers do not need to
do home workstation assessments.
• But what does “temporarily” mean and can this
reassurance be relied upon for 3 to 6 months?
Working from home – how far do our
duties extend?
• How far to go?
• Keyboard and mouse
• Laptop stand/holder
• Adjustable chair (office chairs not necessarily
compliant for home flammability)
• Table?
• Lighting?
• Consider 3rd party safety risks
Returning to work
What needs to be considered in your return to work
risk assessment?
• Depends on sector, workforce, premises
• Accommodate workforce demographics and individual
vulnerabilities (incl. age, pregnancy, mental health, relevant
illness, cohabitee vulnerability, BAME vulnerability??)
• Worker questionnaire (consider confidentiality and data
protection)
• Appreciate worker anxiety and consultation feedback
• Work with other employers/contractors sharing the workplace
Returning to work
Other factors:
• Workstation layout (use of plexiglass, tape, one-way, hand-
washing facilities, sanitizer)
• Lifts, canteens, kitchens, toilets, copying rooms, ventilation,
signage, cleaning
• Doors, handles, fire doors
• Cleaning (workplace, merchandise, vehicles) and ventilation
• Commuting options, bicycle storage and changing facilities, car
parking
• Outdoor meetings
• Meals
• Shift patterns and phased return
• Limit/control visitors
Returning to work
Other factors:
• Govt guidance – Working safely during COVID-19 in or from a vehicle
(11 May 2020) [page 12]
• “Vehicles should not be shared if possible”
• “If it is not possible to keep a 2m distance in a vehicle, consider
additional safety measures”
• “Steps that will usually be needed:”
• e.g. physical screening, sitting side by side, open windows,
fixed pairing, regular cleaning
Returning to work
Source: Govt guidance – Working safely during COVID-19 in construction
and other outdoor work (11 May 2020) [page 27]
Returning to work
Source: Govt guidance – Working safely during COVID-19 in offices and
contact centres (11 May 2020) [page 12]
Returning to work
Source: Govt guidance – Working safely during COVID-19 in offices and
contact centres (11 May 2020) [page 13]
Returning to work
Source: Govt guidance – Working safely during COVID-19 in factories,
plants and warehouses (11 May 2020) [page 13]
Returning to work
Source: Govt guidance – Working safely during COVID-19 in labs and
research facilities (11 May 2020) [page 15]
Returning to work
Source: Govt guidance – Working safely during COVID-19 in construction
and other outdoor work (11 May 2020) [page 14]
Reporting under RIDDOR
Reporting of Injuries, Diseases and Dangerous Occurrences
Regulations 2013 (RIDDOR)
Duty to report to HSE:
• “Where any person dies as a result of occupational exposure to
a biological agent” (Reg 6(2))
• Where an employer “receives a diagnosis of any disease
attributed to an occupational exposure to a biological agent”
(Reg 9(b))
• Office of Rail and Road interpretation: “reliably attributed
… as verified by a registered medical practitioner’s
statement… These instances are anticipated to be rare,
especially as the prevalence of COVID-19 increases in the
general population”
Concluding comments:
Watch out for:
• Inadequate planning and updating
• Poor documentation of planning/risk
assessment/balancing exercise
• Employees pressured into returning or
views/consultation not being accommodated
• Social distancing at work arranged but not enforced
• Adequate PPE not provided and replenished
Questions?
Dr Simon Joyston-Bechal
Turnstone Law, Director
sjb@turnstonelaw.com
Mobile: 07880 684 781

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2020 Health & Amp; safety law conundrums during the pandemic webinar 22 may

  • 1. Welcome to the BHTA Webinar ‘Health & Safety Law Conundrums during the Pandemic’ With Dr Simon Joyston-Bechal 22 May 2020
  • 2. Webinar for BHTA Health & Safety law conundrums during the pandemic 22 May 2020 Dr Simon Joyston-Bechal
  • 3. Speaker: Dr Simon Joyston-Bechal Turnstone Law, Director sjb@turnstonelaw.com Mobile: 07880 684 781
  • 4. Overview Health & safety law conundrums during the pandemic • Could we be prosecuted for COVID-19 exposures? • Managing difficult decisions relating to COVID-19 • Can we keep operating if we are struggling with social distancing? • Working from home – how far do our duties extend? • Returning to work • Reporting under RIDDOR • Q&A
  • 5. Could we be prosecuted for COVID-19 exposures? Criminal H&S law obligations: Health and Safety at Work Act 1974 • All reasonably practicable steps to safeguard employees and non-employees, includes: • keeping up to date with Covid-19 • planning and implementing all reasonably practicable risk reduction measures • Following Govt guidance where applicable
  • 6. Could we be prosecuted for COVID-19 exposures? Criminal H&S law obligations: Management of Health and Safety at Work Regulations 1999 • “suitable and sufficient” risk assessment: • in writing if 5 or more employees • must be reviewed/updated when circumstances change
  • 7. Could we be prosecuted for COVID-19 exposures? Criminal H&S law obligations: Personal Protective Equipment at Work Regulations 1992 • Duty to provide suitable PPE, which must be: • appropriate for risks and conditions • capable of fitting correctly • assessed as suitable and effective, so far as reasonably practicable, to prevent or adequately control the risk • maintained, cleaned and replaced as appropriate • adequate information, instruction and training • take all reasonable steps to ensure PPE properly used
  • 8. Could we be prosecuted for COVID-19 exposures? • HSE website: “take a flexible and proportionate account of the risks and challenges arising from the pandemic” • Can you be reassured that it will be hard to prove that infected workers contracted the virus in the workplace rather than elsewhere? • Can you assume everyone in same boat so won’t be prosecuted? • Consider fear, anxiety of staff and their household members • Deaths will occur • What if operating without adequate mitigation?
  • 9. Could we be prosecuted for COVID-19 exposures? TUC report on returning to work (27 April 2020): “The HSE must act quickly to apply sanctions to employers that do not risk assess for Covid-19 or fail to provide safe working arrangements. Employers must be made aware of the consequences of refusing or failing in their health and safety responsibilities – including prosecution and the forced closure of businesses.”
  • 10. Could we be prosecuted for COVID-19 exposures? Govt guidance - Working safely during COVID-19 (11 May 2020): • “should share the results of your risk assessment with your workforce. If possible, you should consider publishing the results on your website (and we would expect all employers with over 50 workers to do so.)”
  • 11. Could we be prosecuted for COVID-19 exposures? Govt guidance - Working safely during COVID-19 (11 May 2020): • “notice you should display in your workplace to show you have followed this guidance.”
  • 12. Could we be prosecuted for COVID-19 exposures? Health and Safety at Work Act 1974 • “For the purposes of this Part risks arising out of or in connection with the activities of persons at work shall be treated as including risks attributable to the manner of conducting an undertaking, the plant or substances used for the purposes of an undertaking and the condition of premises so used or any part of them.” Section 1(3) • Does HSWA include public health risks attributable to spread of a community-acquired virus amongst the non-healthcare/laboratory workforce? • Leaves open to challenge: • Applicability of HSWA and all subordinate Regulations • HSE and EHO power of enforcement
  • 13. Managing difficult decisions relating to COVID-19 Some difficult decisions: • Can we keep operating if we are struggling with social distancing? • How far can we balance commercial losses against accepting shortfall from ideal H&S protection? • Should we pay for an additional protective measure? • Can we tell staff to return if their commute is crowded? • Can we make staff share work vehicles?
  • 14. Managing difficult decisions relating to COVID-19 What do you have to do? • Follow Government guidance and relaxation steps for your sector • Revise/renew/create relevant risk assessments for Covid-19 to deal with work/return to work • Plans must identify hazards and set out mitigation measures • Should take into account special circumstances of your organization/workers/3rd parties • Risk assess each difficult decision • “Would it have been reasonably practicable to have done more?” • Necessity is part of “reasonable practicability”
  • 15. Managing difficult decisions relating to COVID-19 How to protect yourself from blame if you get it wrong? • Balance commercial decisions against H&S benefits (cost only succeeds as an excuse if jury agree it renders a precaution “not reasonably practicable”) • Be aware you may get it wrong – have foresight of hindsight bias • Benefit of written risk assessment or record to demonstrate the balancing decision making • Role of a specialist lawyer and protection of legal privilege
  • 16. Can we keep operating if we are struggling with social distancing? PHE Guidance for employers (updated 7 April 2020) • “where it is not possible to remain 2 metres apart, staff should work side by side, or facing away from each other, rather than face to face if possible” • “where face-to-face contact is essential, this should be kept to 15 minutes or less wherever possible”
  • 17. Social distancing – how far do we have to go? HSE comments at Work and Pensions Select Committee 11 May 2020: “It isn’t as if there is a sort of bright shield of 2m that’s around everybody and if ever that’s breached then you are unsafe and as long as it’s in place then you’re definitely safe.” Sarah Albon, Chief Exec, HSE
  • 18. Social distancing – how far do we have to go? HSE comments at Work and Pensions Select Committee 11 May 2020: “The 2m rule .. is not sort of like an immediate once you go below 2m that’s it, it’s a very dangerous situation. It’s a function of both distance and duration. So yes, the risk will increase if you get closer to someone. But if you’re close to somebody for a short period of time, then you can manage that risk. Similarly the orientation between people is quite important. So there is a big difference between two people facing each other and two people with their backs to each other.” Prof Andrew Curran, Chief Scientific Adviser and Director of Research, HSE:
  • 19. Can we keep operating if we are struggling with social distancing? Govt guidance: Working safely during COVID-19 (11 May 2020) • Work through steps in order • “Where the social distancing guidelines cannot be followed in full, in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate, and if so, take all the mitigating actions possible to reduce the risk of transmission between their staff.” • “if people must work face-to-face for a sustained period with more than a small group of fixed partners, then you will need to assess whether the activity can safely go ahead. No one is obliged to work in an unsafe work environment.” [page 5]
  • 20. Returning to work Face masks: • Govt guidance - Working safely during COVID-19 (11 May 2020): • “Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19” • “Unless you are in a situation where the risk of COVID-19 transmission is very high, your risk assessment should reflect the fact that the role of PPE in providing additional protection is extremely limited”
  • 21. Returning to work Face masks: • Govt guidance - Working safely during COVID-19 (11 May 2020): • “Supplies of PPE, including face masks, must continue to be reserved for those who need them to protect against risks in their workplace, such as health and care workers, and those in industrial settings like those exposed to dust hazards.” • “It is important to know that the evidence of the benefit of using a face covering to protect others is weak and the effect is likely to be small, therefore face coverings are not a replacement for the other ways of managing risk, including minimising time spent in contact, using fixed teams and partnering for close-up work, and increasing hand and surface washing.” • May nonetheless be useful mitigation and reassurance • Watch for U-turn by Govt once healthcare supplies secured
  • 22. Can we keep operating if we are struggling with social distancing? Risk assessment balancing exercise to consider: • Latest guidelines (not just England/UK) • Alternative means of operating • Other mitigation: • small fixed teams (“cohorting”) • duration of exposure • PPE or other barriers • ventilation • hand washing • Feedback from consulting employees and/or their representatives • Results of antibody testing when available • Necessity
  • 23. Working from home – how far do our duties extend? • Health and Safety (Display Screen Equipment) Regulations 1992 • Prioritise and balance life and death decisions, common musculo-skeletal disorders and DSE technicalities • Consider lone worker issues • Keeping in touch and psychological support • Consult with insurers
  • 24. Working from home – how far do our duties extend? • HSE website: – For those people who are working at home on a long-term basis, the risks associated with using display screen equipment (DSE) must be controlled. This includes doing home workstation assessments. – However, there is no increased risk from DSE work for those working at home temporarily. So in that situation employers do not need to do home workstation assessments. • But what does “temporarily” mean and can this reassurance be relied upon for 3 to 6 months?
  • 25. Working from home – how far do our duties extend? • How far to go? • Keyboard and mouse • Laptop stand/holder • Adjustable chair (office chairs not necessarily compliant for home flammability) • Table? • Lighting? • Consider 3rd party safety risks
  • 26. Returning to work What needs to be considered in your return to work risk assessment? • Depends on sector, workforce, premises • Accommodate workforce demographics and individual vulnerabilities (incl. age, pregnancy, mental health, relevant illness, cohabitee vulnerability, BAME vulnerability??) • Worker questionnaire (consider confidentiality and data protection) • Appreciate worker anxiety and consultation feedback • Work with other employers/contractors sharing the workplace
  • 27. Returning to work Other factors: • Workstation layout (use of plexiglass, tape, one-way, hand- washing facilities, sanitizer) • Lifts, canteens, kitchens, toilets, copying rooms, ventilation, signage, cleaning • Doors, handles, fire doors • Cleaning (workplace, merchandise, vehicles) and ventilation • Commuting options, bicycle storage and changing facilities, car parking • Outdoor meetings • Meals • Shift patterns and phased return • Limit/control visitors
  • 28. Returning to work Other factors: • Govt guidance – Working safely during COVID-19 in or from a vehicle (11 May 2020) [page 12] • “Vehicles should not be shared if possible” • “If it is not possible to keep a 2m distance in a vehicle, consider additional safety measures” • “Steps that will usually be needed:” • e.g. physical screening, sitting side by side, open windows, fixed pairing, regular cleaning
  • 29. Returning to work Source: Govt guidance – Working safely during COVID-19 in construction and other outdoor work (11 May 2020) [page 27]
  • 30. Returning to work Source: Govt guidance – Working safely during COVID-19 in offices and contact centres (11 May 2020) [page 12]
  • 31. Returning to work Source: Govt guidance – Working safely during COVID-19 in offices and contact centres (11 May 2020) [page 13]
  • 32. Returning to work Source: Govt guidance – Working safely during COVID-19 in factories, plants and warehouses (11 May 2020) [page 13]
  • 33. Returning to work Source: Govt guidance – Working safely during COVID-19 in labs and research facilities (11 May 2020) [page 15]
  • 34. Returning to work Source: Govt guidance – Working safely during COVID-19 in construction and other outdoor work (11 May 2020) [page 14]
  • 35. Reporting under RIDDOR Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) Duty to report to HSE: • “Where any person dies as a result of occupational exposure to a biological agent” (Reg 6(2)) • Where an employer “receives a diagnosis of any disease attributed to an occupational exposure to a biological agent” (Reg 9(b)) • Office of Rail and Road interpretation: “reliably attributed … as verified by a registered medical practitioner’s statement… These instances are anticipated to be rare, especially as the prevalence of COVID-19 increases in the general population”
  • 36. Concluding comments: Watch out for: • Inadequate planning and updating • Poor documentation of planning/risk assessment/balancing exercise • Employees pressured into returning or views/consultation not being accommodated • Social distancing at work arranged but not enforced • Adequate PPE not provided and replenished
  • 37. Questions? Dr Simon Joyston-Bechal Turnstone Law, Director sjb@turnstonelaw.com Mobile: 07880 684 781