This week the Scottish Government published workplace safety guidance starting with two areas of the economy, retail and manufacturing. Although the guidance is effective immediately it has been published at this stage to assist with preparations required for re-opening shops and factories. Additional sector specific guidance is expected to follow in the next few weeks.
The exact timing of when shops and factories will be allowed to re-open is dependent on the conditions being met in the Scottish Government Route Map out of lockdown. According to this document, previously closed small retail units can open with physical distancing in Phase 2, with larger retail units following in Phase 3. (In England the UK Government has recently announced that all non-essential shops will be able to re-open on 15 June 2020.)
Currently manufacturing businesses in Scotland are closed unless they are involved in essential activity against the virus, or supporting the wellbeing of society, and provided they are able to maintain a safe workplace. Factories are also scheduled to re-open in Scotland in Phase 2.
Employers operating across the UK will also be aware that the UK Government has published eight guides for working safely during COVID-19. In keeping with the Westminster approach, the Scottish guides contain non-statutory guidance and do not replace employment law or health and safety requirements. Businesses operating across the UK will need to read both sets of guidance documents.
The Scottish guides are detailed, emphasising that businesses should take into account both risk assessment and fair work principles at the planning stage, in addition to recommending pilots as a means of trialling new ways of working. Public health is a devolved matter which explains why we have seen this divergence in approach north and south of the border throughout lockdown, with Scotland taking a more restrictive approach to England in relation to which businesses can stay open.
Comparison with the English guides
The Scottish guides cover similar issues to Westminster, but in some aspects go further. For example, the Scottish guides specifically say employers should take account of travel to work and childcare arrangements in their back to work plans, which is not mentioned to the same extent in the Westminster guides, apart from a brief mention that employers should take steps to avoid an unjustifiable negative impact for those with caring responsibilities.
Within the Scottish manufacturing guide it takes a more prescriptive approach, by saying that travel to work, should be considered as part of the risk assessment process, “with any relevant adjustments adopted”. In England employers with more than 50 employees are encouraged to publish their COVID-19 risk assessment on their website. There is no mention of a similar threshold for publication of a COVID-19 risk assessment in the Scottish guides, which refers to the results of the risk assessment being visible and communicated to employees.
What are the key issues employers should be aware of in relation to the Scottish guides?
Both the retail and the manufacturing guides set out the following key issues for employers:
there should be a full risk assessment undertaken in consultation with employees and there should be constructive engagement with employees when carrying out a risk assessment;
the results of the risk assessment should be visible and communicated to employees;
the actions taken as a result of the assessment should not disproportionately impact those with vulnerabilities such as people with disabilities, single parents, younger or older people and employers should consider how to support those with additional needs to comply with physical distancing; and
the mental health of employees should be factored into the risk assessment with signposting to employer led, government and third sector support made available to staff to manage issues such as confrontation, stress and isolation as needed.
The minimum standard the guides expect in both the retail and manufacturing environments include:
working from home should continue, where possible. (It is recognised that this is not going to be possible for many retail employees but the retail guide says where it is possible for back office / management functions, this should be accommodated.)
health factors should be considered in any phasing of who returns to work, with employees living in vulnerable or shielded households only expected to return when new safe working environment measures have been fully tested and a return to onsite work is consistent with individual medical advice;
new manufacturing/retailing arrangements should be tested and modified in agreement between employers and employees, including by phasing where possible. Employers should be aware of other regulatory compliance measures and any impacts;
employers should take account of travel to work considerations in phasing a restart; and
employers should take account of childcare arrangements, in the case of nurseries and schools not being fully operational.
Individual circumstances and protected characteristics
Similar to the Westminster guides, individual health circumstances and protected characteristics should be considered and discussed with employees before prioritising who is asked to return to work and when.
There should also be a different approach with those who are vulnerable or shielded workers or those living in vulnerable or shielded households. Employers should explore whenever possible how these staff can work from home.
Staggered return to work/flexible working
There is a distinct emphasis in the Scottish Route Map on flexible working and this is replicated in the Scottish guides for retail and manufacturing. Both suggest that employers may need to introduce a phased return to work which may include shift patterns and opportunities for flexible working to both protect the workforce and optimise productive capacity. The guides state that any changes to employment terms and conditions would require proper consultation.
Travel to work
Travel to work is an issue that employers previously did not need to unduly concern themselves with. However, that has changed. Travel to and from work should feature as part of the risk assessments carried out in determining who should be returning to work. Travel should also be addressed in the risk assessments required in planning a safe workplace to return to: both safe travel to work arrangements and the need to reduce travel at peak times where possible. Travel should also be considered in planning for the event where a member of the workforce begins to experience symptoms while at work. What provisions are in place to support workers so that they do not travel on public transport in order to return home? Finally, the retail checklist asks employers to consider the provision of active travel facilities to encourage staff and customers to walk or cycle to the workplace.
The steps that an employer takes as a result of their risk assessment will not only reassure employees, it may also assist a defence if a claim is raised. If an employee has a reasonable belief that they face serious and imminent danger and they have been subjected to a detriment or dismissed (for example, disciplined for not travelling to work) then they may bring an employment tribunal claim. These claims require no service threshold and compensation is not capped. Until now, these detriment and dismissal provisions contained within the Employment Rights Act 1996 (s.44 and s.100) have rarely been used. However, we expect this may change as employees start to raise concerns about safety at work, which may extend to their travel to work, and lead to litigation.
The guides also say where PPE is deemed necessary, an adequate supply and quality must be maintained and provided free of charge to workers who need it. Any PPE provided must fit properly.
Covid symptoms in the workplace
The manufacturing guide recommends that the response to COVID symptoms at work should be dealt with as part of the risk assessment:
“As part of risk assessments companies should explore with trade union or workforce representatives how to respond should anyone develop symptoms while at work, including whether it is possible to identify any particular parts of the site the individual may have accessed or equipment used while symptomatic. As part of this consideration should be given how best to monitor health of all individuals in a workplace.”
Test and protect
In the retail guide it refers to the new Test and Protect strategy for Scotland which is due to go live today, and the newly published guidance for employers. This guidance explains that if an employee becomes unwell with coronavirus symptoms at work the person should leave work to self‑isolate straight away and, if possible, wear a face covering on route and as mentioned above, avoid public transport. Contact tracers will then be in touch with the employee and of course this is likely to mean that any colleagues with whom they have been in close contact with in the workplace will be told to self-isolate. The First Minister recently explained that close contact means "people within your household, people you have had face to face contact with, and people who have been within two metres of for a period of 15 minutes or more".
The guidance recommends that employers should support this public health measure and employees should not be financially penalised for self-isolation. Recent amendments mean employees are entitled to receive Statutory Sick Pay (SSP) for 14 days where they are instructed to self-isolate as a result of contact tracing. If an employee can work from home then they should do so. If they cannot work from home, then any payment above SSP will be a matter for the employer to decide.
Overview of the practical steps to be taken
The retail guidance contains a detailed checklist of measures to be implemented as part of a return to work. These include:
Detailed physical distancing measures in relation to the number of customers entering their shop, signage and markings, queue management.
Face to face services which currently cannot maintain two metre physical distancing should stop, i.e. make-up counters, other beauty treatments. Where physical contact is necessary and cannot be avoided appropriate measures should be considered as part of the risk assessment. This does not prohibit items being sold but relates to the nature of the customer interaction. Put in place pick-up and drop-off collection points where possible.
Encourage customers to wash their hands by providing hand sanitation facilities at entry and exit points and in any common areas.
Use screens to create a physical barrier between people, for example at till points.
Stagger break times and make use of outdoor space for breaks where possible. Use a consistent pairing or grouping system where employees work on shifts together.
The manufacturing checklist of measures has not yet been published. The guide states this will be developed in response to feedback and added as part of the Scottish Government’s regular updates.
The guide does however say that employers should take the following preparatory steps:
Introduce facility layout and signage with clear marking of two metre boundaries around the workplace and workstations and signage which reinforces expectations of employees at relevant points. (The guide also says that as English may not be the first language for everyone onsite companies should consider how best to use visual material to reinforce messages.)
Limit access to parts of the workplace required by an individual to do their job as this will limit the chances for interaction with others.
Stagger entry and exit times to prevent bottlenecks arising as people arrive or leave.
Stagger break times and adjusting canteen arrangements to reduce opportunities for larger numbers of staff to interact on a face to face basis.
Split the workforce into specific teams to avoid cross-team contamination and provide a level of operational resilience in case someone in one team develops COVID-19 symptoms.
Consider opportunities to introduce additional technology support and systems to assist in managing the safe working practices and in particular physical distancing.
We have a number of materials on Covid-19 and the employment law implications of a return to work on our website and read our Law-Now on planning for the new normal. Please do not hesitate to get in touch with your normal contact in the employment team to discuss any of the above.