The government guidance here lists what businesses must remain closed and specifies some which can remain open but it is not definitive. This will leave some businesses wondering and relying on some extent to comparisons to those around which also remain open. It is unlikely that this will give a reliable legal basis on which to continue to trade and we have already seen that some businesses which are similar have very different views on how and if they should continue their operations during the lockdown.
The truth is that most businesses will be judged in hindsight and that liability will arise not just from the perspective of the criminal justice system and police of HSE inspection but also from the civil courts once the lockdown is over.
Those who have continued to work throughout the lockdown may, of course, contract the infection. The route of exposure will almost always be unclear but the employer will retain the responsibility for the health and safety of their employees whilst at work. Should the employee contract COVID-19 and then suffer serious complications or pass this to another household member who then becomes seriously or fatally ill it is conceivable that the case may be brought to the civil courts. As these courts proceed on the balance of probability in considering the claim then the case could find in favour of that employee – something worth considering carefully for all employers.
Please see the joint statement from HSE, CBI and the TUC for further guidance.
This is an extremely worrying time for firms and workers. We know many workers, union reps and employers have questions and concerns about safe working – especially for those continuing to work away from home.
This joint statement between the Health and Safety Executive, the TUC and the CBI is intended to clarify the position. The health and safety of workers remains paramount. Employers are and must continue to provide workers with information about risks to their health and the actions their employers must take.
Social distancing is a key public health measure introduced by Public Health England to reduce the spread of infection. Most employers are going to great lengths to ensure social distancing wherever possible. The HSE, CBI and TUC wish to publicly support these efforts. Firms that can safely stay open and support livelihoods should not be forced to close by misunderstandings about government guidance.
But If it comes to the HSE’s attention that employers are not complying with the relevant Public Health England guidance (including enabling social distancing where it is practical to do so), HSE will consider a range of actions ranging from providing specific advice to employers through to issuing enforcement notices, including prohibition notices.
Where a worker has a genuine concern about health and safety which cannot be resolved through speaking with their employer or trade union, they should contact the relevant enforcement agency – either their local authority or the HSE through https://www.hse.gov.uk/contact/concerns.htm
For firms who are unsure about the guidance, please visit https://www.hse.gov.uk/news/social-distancing-coronavirus.htm
We hope that this information helps you. If you have any questions relating to Coronavirus please contact your retained safety consultant if you are a member of our Safety~net competent person service. We have a number of documents available for retained clients including model risk assessments, flow charts on isolation, administering first aid and home working, toolbox talks for office-based and field-based staff and similar documents which are being developed each day. We’re still open, our phone lines are live and we’re ready to help when needed.
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