What does social distancing in the workplace mean for employers after the Prime Minister announced the latest round of plans to further ease the lockdown restrictions on 23 June? One important feature of his speech was when he stated that “from now on we will ask people to follow guidance on social contact instead of legislation.” This seemed to suggest that the social distancing rules will no longer be as strict as they have been since the first implementation of the lockdown rules back in late March.
How will social distancing measures affect employers?
Below we set out the social distancing guidance for the workplace and how this will affect employers and what they need to do.
The one metre plus rule
The change has been made to facilitate the government’s planned introduction of the ‘one metre plus’ policy that asks people to stay two metres apart where possible, but allows that to be taken down to at least one metre where this is not possible. If a business is set to operate with the one metre plus rule in place they must also take additional steps to mitigate the risk of transmission. These include avoiding face-to-face seating; reducing the number of people in enclosed spaces; using protective screens and face coverings; improving ventilation; and keeping staff in set work teams.
The changes were introduced from 4th July in order to coincide with the re-opening of the hospitality sector, amid great concerns from leading figures in the sector that they would not have been able to adequately comply with the original 2-metre social distance regulations. It is hoped that the new rules will allow these types of businesses greater flexibility to re-arrange their business premises to get customers back in and retain their staff.
The implications of social distancing for employers
At present, there seems to be an element of inconsistency between the ‘one metre plus’ rule and the original detailed guidelines on the return to work and making workplaces ‘Covid secure’, which were published by the government in May. This guidance heavily advocated for the 2-metre social distance rule which was listed as one of the 5 key principles that a business should implement if they were to have a ‘Covid secure’ workplace.
In a similar vein, the previous guidance also advised that where a two-metre distance is not possible, careful assessment is needed as to whether that business activity should take place at all and, if it must, that transmission risk must be managed by other infection control measures.
The inconsistency leaves some businesses in confusion as to what policies to adopt if they are to comply with the guidance and be considered ‘Covid secure’. For example, can other sectors implement the more relaxed social contact rules or are the new rules specifically designed for the hospitality sector? It is not abundantly clear, but the government has confirmed that they “will publish Covid-secure guidelines for every sector that is re-opening” therefore, this should be the first port of call for employers within their respective sectors.
What should employers be doing?
It would be advisable for employers to take a cautious approach to the new guidance on social contact. Businesses that have already been cleared to open should have, at the very least, followed the initial guidance (allowing for a 2-metre social distancing policy between their employees and carry out a risk assessment as to whether the work should be taking place if it is not possible to allow for a 2-metre distance) up until the 4th July.
Post 4th July they may now wish to take a bolder approach to social contact within their workplace and implement the one metre plus rule if they can take additional steps to mitigate the risk of transmission. However, they should take extra care before doing so, regularly checking the government guidance in respect of their specific sector and carry out adequate risk assessments in line with the relevant guidance.
What happens if employers break the rules?
Although the social distancing rules are no longer considered legislation, the extent to which the employer has complied with government guidance, and clearly communicated this to their workplace, will be paramount in considering whether an employer has provided a safe and Covid-secure workplace to its employees. Compliance with government guidance will also be good evidence of what is reasonably practicable, and it is likely to set the standard required by the Health and Safety Executive (HSE) in terms of its enforcement action.
Importantly, the HSE has previously stated that where employers are not complying with the relevant Public Health England guidance (including enabling social distancing where it is practical to do so), the HSE will consider a range of actions ranging from providing specific advice to employers through to issuing enforcement notices, including improvement notices (where an employer has 21 days to rectify their conduct) and prohibition notices (which requires the work susceptible to injury to cease immediately – which could lead to a potential workplace closure in the context of Covid). Considering this, it is likely that these actions will still be available to the HSE despite the fact the social contact rules are now only guidance rather than legislation.
If you would like to discuss any issues covered in this update please contact a member of the Employment team.
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This update was co-authored by Fred Chandler, Trainee Solicitor and Claire Merritt, Partner.