Over the line

Where do you draw the line in office social distancing? Dr Simon Joyston-Bechal, a Director at Turnstone Law looks at the lessons to be learnt from the HSE’s enforcement action against the Department for Work and Pensions

We have all been trying to follow the Government’s guidance on social distancing for specific sectors. The guidance for ‘offices and contact centres’ has been widely implemented, for example with physical barrier screens and miles of tape designating one-way walking routes and desks taken out of action. For some people these measures are excessive and for others they are insufficient.

I have been looking closely at the details of the Health and Safety Executive (HSE) enforcement action against the Department for Work & Pensions to help answer the question I have been asked by many clients: How far do we need to go to comply with the criminal law on social distancing for offices?

WHAT LED THE HSE TO TAKE ENFORCEMENT ACTION AGAINST THE DWP?
In response to a whistle-blower complaint from a DWP employee, the HSE visited the large DWP Quarry House office in Leeds at the end of August 2020 and served on the DWP a formal Improvement Notice(i) and a Fee for Intervention(ii) Notice of Contravention and Material Breaches of health and safety law.

The first lesson, therefore, is that consultation with staff and sensitivity to their concerns about COVID-19 is going to pay dividends in terms of reducing the likelihood of complaints that are likely to spark an HSE visit. This is not straightforward and I have spent much time devising staff questionnaires and analysing responses in order to assist clients to determine who should come to the office and who should work from home.

WHAT WERE THE BREACHES OF HEALTH AND SAFETY CRIMINAL LAW?
This enforcement action was based on section 2 of the Health and Safety at Work Act 1974 – all reasonably practicable steps must be taken so as to ensure the health, safety and welfare of your workers. This includes keeping up to date with the work-related risks posed by COVID-19, as well as planning and implementing all reasonably practicable risk reduction measures.

The HSE made a number of criticisms of the DWP based on the Government’s guidance on working safely during coronavirus for offices and contact centres(iii).

The HSE complained that the DWP had not taken sufficient account of crowding at access and egress points that would undermine social distancing. They wanted the DWP to have put in place measures that would work in the future, when more of their staff returned to the office. They also wanted more to have been done to stagger start and finish times.

The HSE had taken photos to demonstrate what they considered to be inadequate social distancing measures. The DWP had used yellow and red tape to designate walking routes and directions of travel but the HSE complained that many of these were two-way routes that were little more than one metre wide and pass very close to desks that were designated as usable. They also wanted the DWP to have blocked off short-cut routes that would take people close to seating areas; and suggested that barriers and screens could have been used. They wanted routes to have been reviewed to determine whether more of them could have been designated as one-way.

The HSE further complained about coat stands encouraging staff to congregate close to desks. Stairwells were not wide enough for two metre distancing, so they wanted them to be designated as ‘up only’ or ‘down only’.

The HSE used as evidence a photo of a group of four staff ‘congregating’ around their seated line manager to receive instructions about the following day. They considered that the line manager should have been leading by example and encouraging compliance with the DWP’s social distancing rules.

The HSE had taken photos of break out areas, with pods and tables surrounded by seats. They pointed out that, although the DWP had stipulated to staff that these were not to be used, and indeed they were not being used, the DWP should have gone further and taken them out of action with ‘do not use’ signage or tape, or else stipulated a maximum occupancy.

COULD THE DWP HAVE CHALLENGED THE NOTICES?
Being a Government department, the DWP chose not to challenge these enforcement notices. There is a strict 21-day time limit for appealing HSE enforcement notices and I have generally had a good success rate in doing so – particularly when the HSE’s expectations appear excessive.

In this case, the DWP had clearly risk assessed for COVID-19 and taken a myriad of measures, including training and physical office rearrangements. There was a strong argument that the DWP had done everything that was ‘reasonably practicable’, which is the legal test.