Government guidance is that if someone cannot work from home and has to travel to work, they should cycle or walk wherever possible. It advises employers to implement measures such as staggering arrival and departure times to reduce crowding, and by providing additional parking/bike racks. However, many people rely on public transport to get to and from work, and may not have a car or bike. Public transport can become congested, particularly during peak rush hours, making it very difficult to maintain physical distancing from other commuters. The availability of public transport is also an issue, as trains, buses and tubes have been running a much-reduced service. Many employees are therefore likely to have legitimate concerns about using public transport, especially as government advice says to avoid it. Any decisions about whether or not an individual employee should return to a workplace needs to factor in wider considerations such as their daily commute and ability to arrive safely. Every employee should have the opportunity to discuss any concerns about their commute with their manager as part of the return-to-work process, which should take place in advance of the day that individual is expected to return.

What are our obligations to protect the health and safety of our employees?

Employers have a duty to look after the health and safety of their employees. This currently comes from two main sources: 1. The Health and Safety at Work etc Act 1974, which provides that: It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (Section 2(1)). 2. The general duty to take reasonable care of the health and safety of employees and to take reasonable steps to provide a safe workplace and a safe system of work. This duty arises both from case law and is implied into contracts of employment. In addition, employers are required to follow any specific regulations and guidance which has been issued by or on behalf of the government and which relate to the coronavirus pandemic, including, for example, new provisions in the Management of Health and Safety at Work Regulations 1999 and the Workplace (Health, Safety and Welfare) Regulations 1992, as well as guidance on social distancing and personal protective equipment etc. A failure to comply with health and safety obligations could leave employers exposed to claims by employees. For example, employees could argue that a failure to adequately protect them is a breach of the implied duty of trust and confidence and then resign and claim constructive unfair dismissal. The Employment Rights Act 1996 also provides protection to employees from being dismissed or treated to their detriment if they raise health and safety concerns. Of course, a breach of the Health and Safety at Work etc Act 1974 can also amount to a criminal offence.

What steps should we take to protect the health and safety of our employees in the workplace?

It goes without saying that the impact of COVID-19 has been unprecedented and research on how to limit the spread and treat those infected is very much still developing. This understandably makes it difficult for employers to assess and put in place appropriate measures. Nevertheless, under the Health and Safety at Work etc Act 1974, employers must conduct a suitable and sufficient risk assessment of all of the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk. Before any return, therefore, an employer must carry out this assessment and take measures to mitigate any risks identified. This should be reviewed regularly. Employers are legally required to provide employees with specific information about health and safety risks and the measures to prevent and protect against those risks. Our view is that, employers should think about further steps they could take to reassure and communicate with employees, for example by setting up employee-led committees or forums to discuss, practically speaking, what measures can be taken. As a minimum, employers should provide a point of contact for employees so they can discuss any concerns. Please ensure you liaise with your HR and/or legal advisors when deciding on your communication method. If employers are able to agree a safe system of work with staff or staff representatives (including trade unions) that is likely to assist significantly with returning staff to the workplace and defending any claims that the employer is being unreasonable. Managing ongoing health and safety risks is likely to include the following:

• Rearranging desks and workstations to ensure that these are at least two metres apart or 'one metre plus' with risk mitigation
• Ending hot desk arrangements to avoid staff sharing equipment
• Limiting the number of people who are in the office at any one time. This could include, for instance, splitting a team in two and requiring each team to attend the office on alternate weeks or swap mid-week
• Providing face coverings for employees to wear and providing information on how they should be used reflecting the Government guidance on this
• Using floor markings to mark social distancing protocols in areas which employees use frequently, including, for instance, the entrance and exit to the building
• Allowing employees who travel in on public transport to have more flexible start and finish times to allow them to avoid any rush hour
• Restricting employees from attending non-essential meetings or work social events
• Providing a secure area for employees to go if they are presenting coronavirus symptoms at work and have a detailed plan to safely exit the employee, allowing them to return home to isolate
• Providing access to handwash, hand sanitiser and reminding employees of the recommended hygiene measures
• Temporarily closing any common areas where social distancing will be difficult to achieve
• Increasing deep cleaning of the office, particularly in relation to high impact surfaces that are regularly touched, such as door handles, taps, doors and light switches

Employers should also continue to consider how to protect the mental health of their employees and provide guidance to managers on how to assist and when to escalate concerns. For instance, if the employer has an Employee Assistance Programme available this should be highlighted to them and employees should be encouraged to keep in touch with their team members, particularly those who have to remain at home whilst the rest of the workforce is returning. We recommend liaising with the HR or legal departments for further gudiance in this area.

What about the journey to work?

There is a debate about whether employers need to consider an employee’s journey when determining if it is safe for an employee to return to work. Clearly employers will have a limited ability to do anything to affect the safety of this, other than perhaps adjusting working hours. However, our preliminary view is that employers should take into account the risk posed to people by their journeys, particularly if they are in a vulnerable category, when assessing whether it is reasonable to require them to attend work. We recommend liaising with your legal team, or your HR department for further guidance in this area. This is likely to be particularly relevant for employers based in cities where many employees use public transport to get to work, which may make social distancing harder to achieve.

Phyiscal barriers

• Reduce physical contact between workers and distance or isolate workers whenever possible
• Reassess the layout of work stations to ensure 2 metre distances
• Reassess how many workers can be accommodated and use spare offices and meeting rooms to spread staff out
• Consider barriers and empty desks between workers in the workplace as well as two- metre distances between staff. Plastic sheeting, partitions, and solid storage units may be appropriate
• End hot desking and all shared equipment
• Encourage pick-up or delivery of goods outside the premises leaving goods to quarantine for a period where possible.

Safety equipment and facilities

• Provide anti-bacterial gel, sanitation gel and wipes for all staff
• Facemasks and gloves are recommended by the government where PPE would normally be applied i.e. labs. Some organisations are recommending or providing face-coverings for confined spaces or travel but this is not a government guideline.

Training and communication

• Communicate and consult with all employees on plans to reopen and about any new rules and policies that apply
• Involve and consult with recognised trade unions and/or employee representatives where appropriate, especially where changes to working hours and other terms and conditions are needed
• Send email reminders and display signs around the workplace to raise awareness of measures adopted.

Cleaning

• Increase the regularity of deep cleaning, especially desks, surfaces, door handles and other surfaces that people touch regularly. Leave doors open (subject to fire risks)
• Advise workers to wash their hands frequently and effectively and restock facilities regularly
• Ensure waste bins are lined with plastic bags so that they can be emptied without touching the contents.