We strongly recommended that you seek professional HR and legal advice before making these assessments. The guidance we present here is our opinion of what we believe good practice to be. The risks to people’s health from this pandemic are psychological as well as physical. Everyone will have experienced a challenging time during lockdown and many will have experienced anxiety due to a range of different factors, depending on their individual circumstances. People’s mental health is fluctuating, so there needs to be an ongoing conversation about well-being as part of every manager-employee one-to-one. Individuals who have a pre-existing mental health condition, such as anxiety and depression, should have been offered support during this health crisis. But many others may now have developed a mental health condition, and so support such as an employee assistance programme or counseling should be offered to all employees. The best way to assess people’s mental well-being before a return to a physical workplace is to encourage a culture where people feel safe to talk about their feelings and seek help. Hopefully, managers will have the kind of trust-based relationship with each team member whereby an employee can raise their concerns. Managers need to listen with empathy and treat all concerns seriously, and signpost to help if needed. They also need to be prepared to discuss any changes to someone’s role or working arrangement to help ease them back to work. Many people will need a period of readjustment and so a phased or gradual return could be needed. Managers could also be feeling vulnerable and so it’s very important that employers ensure they are properly supported to support employee well-being, and can address their own well-being concerns.

Liability

Employers have existing contractual and statutory duties to take care of employees’ health and safety. If employees can prove they caught coronavirus at work and the employer cannot show they have taken appropriate steps to prevent this, the employer could be liable for the employee’s losses. Some employees may be unable to work for some-time and some may have more serious health implications. Depending on the levels of Covid-19 in the UK population, and the accuracy of the government’s tracking app it will be difficult for employees to prove they contracted the disease at work. Although it should be rare, some employees may be able to establish the employer unnecessarily exposed them to danger and risk. Potential liabilities include health and safety protections, unfair dismissal and discrimination claims.

Managing risks

Employers should keep records to show that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately and that they have:

• Undertaken workplace safety audits
• Updated policies and procedures
• Identified potentially hazardous situations
• Made changes to reduce exposure
• Trained employees and communicated new policies and procedures to them
• Monitored the workplace to ensure compliance by employees with new health and safety rules, policies, practices and procedures
• Performed random checks and kept on-going compliance reports in regular and continuous efforts to ensure compliance
• Encouraged reporting of problems and have an open environment that welcomes feedback

Other duties at work

As well as the over-riding duty to care for employees’ health and safety the following duties also apply:

Risk assessment: Employers who have employees returning to their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. All employers in England should follow Government and Public Health England advice guidance to manage the workplace environment, for example by implementing social distancing measures in accordance with government guidelines. Government advice on how to manage workplace risk and make your businesses ‘Covid-19 secure’ is available on the Government website.

Reporting

The Health and Safety Executive (HSE) has issued guidance on reporting cases of Covid-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Reports will only be needed if:

• A worker has been diagnosed as having coronavirus and there is reasonable evidence it was caused by work exposure. This must be reported as a case of disease.
• An unintended incident at work has led to someone's possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.
• Such incidents are more likely to occur in a laboratory, health or care setting. HSE guidance does not suggest that every case of Covid-19 in the workplace is reported and it is unlikely that extensive RIDDOR notifications will be made. Employers must consider the individual circumstances when they decide whether to report.
• If employers do not take appropriate steps to comply with the relevant law and guidance such as social distancing at work or ensuring workers in a 'shielded' category follow NHS advice to self-isolate, the HSE could simply provide advice or issue enforcement notices. The HSE will be conducting spot inspections and responding to reports from concerned individuals. In Scotland and Wales the police can enforce social distancing in the workplace.

Travelling to work

The current government advice in England (but not Wales, Scotland or NI) is to ‘actively encourage’ a return to work while trying to avoid public transport and maintaining social distancing. It will be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable. However, employers may be liable if employees can show that they were unnecessarily exposed to risk when there were alternatives available.

For those returning, the Prime Minister advised they should avoid crowded public transport and either go by car, or even better by walking or bicycle. The transport secretary has announced new powers for councils to widen pavements and create new cycle lanes to facilitate socially distanced travel. As this is government advice, employers should encourage employees to avoid public transport and may consider, where possible:

• Provision of parking spaces
• Secure bicycle parking
• Shower facilities
• Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport
• Special provisions for vulnerable staff e.g. pregnant, and those with impaired immunity helping them to avoid public transport or its use at peak times
• Talk to our Avison Young ‘Reopening your Workplace’ Experts about staggering working hours and flexible working approaches.