A setting you can live with

Covid-19 is still with us, and on we go in the quest for tolerable ways of living and dealing with it.

This week's announcement to remove the traffic light system altogether has managed to please, delight, and dismay, depending on who you ask. As public health emergencies go, Covid-19 really does continue to present its own particular challenges. How should one see this new freedom in terms of organisational governance?

The overarching thought to keep in mind is the obligation you have at all times to comply with any and all Covid-19 legislative requirements that may continue to apply to your business or service. Even if these are all removed, you should still consider public health guidance and you should continue to stay informed as the pandemic progresses.

And the question to have in top of mind continues to be: are there any risks to health for our workers and in our workplace? You achieve compliance with the Health & Safety at Work Act 2015 by eliminating, or minimising where possible, any risks to health when working or at the workplace.

But what if you, or your staff, want to do more? Where do things stand if you would like to continue voluntarily to maintain some safety protocols for your staff?

If there's no longer any statutory requirement, you will generally need to justify this with a formal risk assessment that identifies whether this is objectively justifiable. This will be especially so if any requirement interferes with the way staff dress or would normally interact with each other. 

Specifically:

You would need to show a strong workplace health-based justification for any type of intrusive or onerous obligation for example  to be vaccinated. Less strong grounds may be needed for less controversial requirements, say, to observe physical distancing or possibly to wear a mask when in confined spaces.

If your proposal is to require - as opposed to encourage - safety measures, it will be more likely to be justifiable where there is a greater risk to workers being exposed at the workplace than in the community.

You’ll generally only be on strong ground in retaining obligatory safety protocols where the risk assessment indicates that this is justifiable, either for the whole organisation or in relation to certain areas/roles.

It's also worth noting that this WorkSafe guidance notes that a change in the Covid-19 Protection Framework is a good reason for undertaking or refreshing a risk assessment.

You need to be doing these risk assessments in consultation with employees, meaning staff who are uncomfortable and/or vulnerable will be able to voice their concerns. And those risk assessments must focus on the nature of the work and not the individual performing the work. However, employers are able to discuss and agree specific arrangements to deal with individual needs and circumstances (for example vulnerable staff).

Where do individual rights fit in this?

Even if businesses abandon Covid-19 safety rules, individuals will generally be entitled to continue to exercise personal safety protocols at the workplace (for example wearing a mask), so long as this does not interfere with their work. Organisations can allow and encourage this.

However, instructions not to wear masks or not to take other personal safety steps are likely to need to be backed by a legitimate objectively established business requirement, particularly if these steps have been the norm during the past months.

And as for compulsion?

As before, employers should be in a position to compel employees to return to the office/workplace where their employment agreement stipulates it as their place of work, so long as there is no significant health risk associated with that requirement. Special care may need to be taken with employees who are especially vulnerable to infection or harm associated with infection.

Abiding advice for navigating these sometimes fractious times

Locating common ground about dealing with the virus will not always be easy. As ever, the foundation to good organisational governance here will lie in good consultation and communication with everyone involved: businesses, staff, customers, contractors. The better you consult, the better your prospect of landing on a setting you can live with.

About the author

James Warren is a partner in Dentons Kensington Swan's employment and workplace health & safety team. He supports organisations with workforce change, employee relations and disputes, and the employment issues arising out of commercial transactions. He advises clients on the full range of employment issues, including restructurings, investigations, dismissals and disciplinary issues, personal grievances, and contractual and collective issues. 

James has been consistently recommended in The Legal 500, has been published widely and is regularly asked to speak at conferences and seminars.