Coronavirus at work: Where is the regulatory leadership?

The HSE appears to be parroting government advice, even where it contradicts other guidelines.

Commentary icon6 May 2020|Comment

Phil James
Phil James

Professor of Employment Relations, Middlesex University

The media has been full of coverage of the risks of Coronavirus being faced by workers. Inevitably, much of the focus has been on the health and social care sectors. However, acknowledgement has also been widely given to those confronting workers in a wide range of other settings, including warehousing, delivery people, manufacturing workers and other public services.

There are good grounds to believe that all too often the risks concerned are being inadequately addressed. The most graphic demonstration of this is the problem of accessing personal protective equipment (PPE) facing frontline workers in health and social care. However, it has also become apparent that many are working in environments in which social distancing is difficult or impossible, and access to soap and water, and hence regular hand washing, is problematic.

There is consequently no question that Coronavirus constitutes a significant and important workplace health and safety issue. One would consequently think that the Health and Safety Executive (HSE), the central regulatory authority for health and safety at work, would be at the forefront of efforts to ensure that the relevant risks are being adequately controlled. Yet a simple look at its website amply demonstrates that this has not been the case. It is no wonder therefore that three civil service unions felt moved at one point to write to the HSE expressing themselves ‘concerned not only by the apparent inaction but also by the potential reputational damage this will cause to HSE as an independent regulator in the longer-term’.

This inaction needs to be highlighted, particularly now when the government is preparing new guidance on workplace health and safety issues as part of its plan to ease the Coronavirus lockdown. Otherwise, there is a clear risk that the problems associated with HSE’s performance will be replicated in the new guidance regime.

These problems are highlighted here by focusing attention on two related issues: first, the HSE’s extremely low-key approach towards highlighting the relevance of the general duties of the Health and Safety at Work Act (HSWA) 1974, the Personal Protective Equipment Regulations 1992 and the Control of Substances Hazardous to Health Regulations 2002 to the management of Coronavirus in the workplace; second, the nature of the official guidance provided to employers on the issue of social distancing by both the HSE and the government.

Coronavirus at the workplace: the legal duties

Under Section 2(1) of the Health and Safety at Work Act (HSWA), every employer is required to ensure, so far as reasonably practicable, the health, safety and welfare of all employees. In a similar vein, under Section 3(1), employers have to conduct their undertakings in such a way ‘as to ensure, so far as reasonably practicable, that persons not in their employment who may be affected thereby are not thereby exposed to risks to their health and safety’. These duties are in turn supported by obligations under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 to make a suitable and sufficient assessment of the risks to health and safety of employees, and those not in their employment ‘arising out of, or in connection with, the conduct by him of his undertaking’, for the purposes of identifying the measures the employer needs to take to comply with health and safety provisions. In addition, under Regulation 5(1) of the same regulations, employers are additionally required to give effect to such health and safety arrangements as are appropriate, having regard to the nature of the employers’ activities and the size of their undertaking, for the effective planning, organisation, control, monitoring and review of preventive and protective measures.

There are good grounds to believe that all too often the risks concerned are being inadequately addressed.

All these duties clearly extend to cover the management of Coronavirus risks in the workplace. They moreover sit alongside much more specific ones relating to PPE and hazardous substances.

In the case of the former, Regulation 4 of the Personal Protective Equipment Regulations 1992 requires all employers to ensure that suitable PPE is provided to employees who may be exposed to a risk to their health and safety while at work, except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective. Regulation 7 then further obliges them to ensure that any PPE provided to employees is maintained, which includes being replaced and kept in working condition.

These requirements on PPE exist alongside further ones of relevance under Regulation 7 of the Control of Substances Hazardous to Health Regulations 2002. This regulation requires employers to ensure that the exposure of employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled. Its relevance meanwhile is highlighted by the fact that an HSE document – ‘Pandemic Flu – Workplace Guidance’ – confirms that pandemic influenza viruses fall within the scope of the regulations.

Insofar as this is correct, it also follows that incidences of Covid-19 will be reportable, by virtue of Regulation 9, under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.

The obligations under Regulation 7 of COSHH go on to impose further requirements in relation to situations where exposure to a hazardous substance cannot be prevented. Regulation 7(2) states that ‘where adequate control of exposure cannot be achieved by other means, suitable personal protective equipment should be provided’, while Regulation 7(4)(c) makes clear that required protection measures include reducing to the minimum required for the work concerned the number of employees subject to exposure, and the level and duration of their exposure, as well as the provision of ‘appropriate hygiene measures, including adequate washing facilities’. This last requirement, it should be noted, sits alongside more detailed requirements laid down under Regulation 21 of The Workplace (Health, Safety and Welfare) Regulations 1992.

Coronavirus guidance

The first thing you see when you enter the HSE website is a large box containing two smaller ones – one with the words ‘Coronavirus (Covid – 19) and a link to ‘Latest Information and advice’ and another stating ‘Coronavirus Protect Yourself and Others’ – a statement that effectively downplays the protective role of employers by implying that the primary responsibility for combating Coronavirus at the workplace rests with workers themselves.

With regard to the link in the first box, this takes the reader to a page with the following text:

‘The Department of Health & Social Care (DHSC) and Public Health England (PHE) are leading the UK government response to the coronavirus (COVID-19) outbreak.

You can get up-to-date information about Coronavirus (COVID-19) and what you need to do on GOV.UK.

There is coronavirus information for people and businesses in other nations of the UK:

So, from this page you can access various pieces of guidance issued by the UK government in relation to Coronavirus, as well as the information provided by the Scottish and Welsh governments and in respect of Northern Ireland. From the front of the HSE website there is also a link to a page giving access to short pieces of HSE advice on a number of Coronavirus-related issues: RIDDOR reporting of COVID-19; Research – review of PPE in healthcare settings; Face masks – face fit test; Hand sanitiser – manufacture and supply, Drivers – access to welfare facilities and hours rules; Protect home workers; Work equipment – examinations and testing; and Social distancing, your business and in-work activities. These links in turn cross-refer to various sources of guidance on relevant regulatory requirements. For the most part, however, the advice provided is not explicitly phrased in relation to these requirements. As a result, it is not framed in terms of ‘what employers must legally do’ and hence downplays its rooting in statutory obligations.

As regards social distancing, a clearly challenging issue for many businesses, the HSE advises that ‘Employers who have people in their offices or on site should ensure that employees are able, where possible, to follow Public Health England guidelines on social distancing’ which, among other things, states that ‘Workplaces need to avoid crowding and minimise opportunities for the virus to spread by maintaining a distance of at least two metres (three steps) between individuals wherever possible. This advice applies both to inside the workplace, and to where staff may need to interact with customers.’ It then goes on to note that ‘the practical implementation of this advice will depend on the local circumstances’, provides a link to ‘examples for various industries’ and notes that ‘a few general indicators will be relevant to the majority of business settings’. These indicators include advice that ‘where it is not possible to remain two metres apart, staff should work side by side, or facing away from each other, rather than face to face if possible’.

The advice provided by HSE is not framed in terms of ‘what employers must legally do’ and hence downplays its rooting in statutory obligations.

Once again it can be seen that the HSE downplays the legal obligations of employers, as well as the issue of whether the advice provided aligns with them. Extraordinarily, for example, no reference is made to:

  • the possible need to provide PPE where it is not possible to maintain social distancing,
  • the requirement that resulting risks be risk assessed and
  • the need under COSHH to consider alternative methods of protecting workers before PPE is considered.

More widely, is the HSE really suggesting that the above advice concerning staff ‘facing away from each other’ is compatible with COSHH and PPE requirements, or the general duties of the HSWA? One cannot help wondering whether HSE has somehow forgotten that it is a regulator!

These inadequacies are compounded by the fact that if the links to advice on social distancing promulgated by Public Health England and the Welsh and Scottish governments are pursued, the reader is confronted by the fact that (a) the phrasing and detail of these vary and (b) in the case of the last two they actually sit alongside regulatory provisions that require certain categories of business during the emergency period to:

‘(a) take all reasonable measures to ensure that a distance of two metres is maintained between any persons on the premises (except between two members of the same household, or a carer and the person assisted by the carer),

(b) take all reasonable measures to ensure that it only admits people to its premises in sufficiently small numbers to make it possible to maintain that distance,

(c) take all reasonable measures to ensure that a distance of two metres is maintained between any person waiting to enter its premises (except between two members of the same household, or a carer and the person assisted by the carer)’.

On the one hand, therefore we have in place health and safety laws covering the whole of the UK for which HSE has responsibility. On the other, we have different sets of government guidance on managing coronavirus in the workplace, some bits of which are backed up by law in the case of Wales and Scotland. Meanwhile, the relationship between the latter and the former is left unclear. This simply cannot be deemed a satisfactory situation.

What seems to be happening, then, is that HSE is choosing to align itself with government guidance even where the legal standing of that guidance is questionable. As the effective guardian of health and safety laws in the Britain, HSE can therefore be seen to be choosing to downplay its significance. Now, this may (possibly) be defensible in a time of crisis. However, it is surely not acceptable for HSE to be pursuing such a course of action without any public acknowledgement that this is what it is choosing to do in order to fall in line with wider government policy.

What seems to be happening is that HSE is choosing to align itself with government guidance even where the legal standing of that guidance is questionable.

Conclusion

When the HSE merged with the Health and Safety Commission in 2008 it in effect became the national authority for health and safety at work proposed in the 1972 report of the Robens Committee. In proposing such a body, Robens envisaged it as one that would exhibit a substantial degree of independence and autonomy. HSE’s performance during the Coronavirus crisis provides yet further evidence that it simply does not act in this way. In doing so, it indicates that not only should the actions of HSE during the crisis be subjected in due course to independent evaluation but that thought needs to be given to how it can be reconstituted to become a more meaningful protector of worker health and safety.

More widely, its recent performance also clearly adds weight to the IER’s belief that the time is right for a Royal Commission to be established to undertake a comprehensive review to examine all aspects of health, safety and wellbeing at work.

Health and Safety Duties

The following are some of the key legislative health and safety requirements relating to the management of Coronavirus at the workplace. These are statutory duties, legally enforceable, carrying criminal charges if neglected.

Health and Safety at Work Act, 1974

Section 2: Duty to look after health, safety and welfare of employees

Section 3: Duty to consider health and safety of those not employed

Section 2: Duty to consult safety representatives

Safety Representatives and Safety Committees Regulations 1977

Regulation 4, right of reps to:

  • Represent employees in consultations with employer
  • Make representations to employer
  • Investigate hazards and dangerous occurrences
  • Conduct investigations and inspections
  • Personal Protective Equipment Regulations, 1992

Regulation 4: Duty to provide suitable equipment

Regulation 7: Duty to maintain PPE in working order

Management of H&S at Work Regulations, 1999

Regulation 3: Duty to undertake sufficient assessment of risks

Regulation 5: Duty to plan, organise, control, monitor and review preventive and protective measures

Control of Substances Hazardous to Health Regulations, 2002

Regulation 2: Duty to provide PPE where control of exposure cannot be achieved

Regulation 7: Duty to prevent or adequately control exposure – including pandemic flu (HSE)

Regulation 7: Duty to minimise numbers exposed and level and duration of exposure.

Regulation 7: Duty to provide appropriate hygiene measures, including adequate washing facilities.

Phil James

Phil James

Phil James is Professor of Employment Relations at Middlesex University. He has researched and written extensively on a wide variety... Read more »