FMJ.CO.UK HEALTH & SAFETY FOCUS
DECEMBER/JANUARY 2021 43
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
sta questionnaires and analysing
responses in order to assist clients
to determine who should come to
the o ice 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 workrelated
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 o ices
and contact centres(iii).
The HSE complained that the
DWP had not taken su icient
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 sta returned to the
o ice. 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
o 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 oneway.
The HSE further complained about
coat stands encouraging sta 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 sta ‘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 sta 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 o ice
rearrangements. There was a strong
argument that the DWP had done
everything that was ‘reasonably
practicable’, which is the legal test.
CONCLUDING COMMENTS
My personal view is that it would
have been easy to have taped over
the break-out seating; and that the
desks right next to the designated
walkways ought to have been
taken out of action or protected
by screens. I also advocate, in so
far as it is practical and acceptable
to the o ice workforce, a policy of
obligatory face coverings whilst
standing, optional whilst seated.
This policy would have mitigated the
alleged breach occasioned by the
team gathering and also would have
dramatically improved the social
distancing impact of the designated
walking routes. It may have averted
the enforcement notices and would
have given much stronger grounds
for appeal.
This HSE enforcement action
serves as a warning to facilities
managers and employers. It does
seem extreme but it demonstrates
the HSE’s approach and assists us to
draw the line as to what the HSE are
going to consider to be acceptable to
comply with health and safety law.
My advice, above all, is to risk
assess any areas of concern, mitigate
the hazards and document in writing
the balancing arguments you have
considered in order to demonstrate
that you have done everything so far
as reasonably practicable.
For di icult decisions, you may
want advice from a specialist H&S
lawyer; and it could be helpful
to use legal privilege to protect
some of the sensitive deliberative
documentation from needing to be
disclosed to the HSE, local authority
and compensation claimants.
KEY CRIMINAL HEALTH & SAFETY
LAW OBLIGATIONS:
Health and Safety at Work Act 1974
Take all reasonably practicable steps
to safeguard employees and third
parties. This includes:
Keeping up to date, e.g. with
COVID-19 rules and guidance
Planning
Training
Communication/information
Implementation
Monitoring and review
Management of Health and Safety
at Work Regulations 1999
Duty on all employers to make
“suitable and su icient” risk
assessment covering health & safety
risks of employees and third parties:
Must be in writing if five or more
employees
Must be reviewed/updated when
circumstances change
Risk assess di icult decisions, e.g.
for COVID-19 precautions
Maximum penalties: unlimited
fine or imprisonment for up to two
years (18 years for gross negligence
manslaughter). Insurance forbidden
from paying criminal fines.
ABOUT THE AUTHOR
Dr Simon Joyston-Bechal is widely
regarded as one of the UK’s leading
health & safety lawyers. Having
previously qualified as a doctor,
he is uniquely placed to deal with
technical, safety and health related
legal issues. As well as defending H&S
enforcement, he focuses on training
senior management and advising
organisations on legal preventive
measures to reduce the likelihood of
prosecution in the event an incident
occurs. sjb@turnstonelaw.com
REFERENCE NOTES
(i) www.hse.gov.uk/enforce/
enforcementguide/notices/notices-types.
htm#P7_25
(ii) https://bit.ly/2LaVwrv
(iii) www.gov.uk/guidance/workingsafely
during-coronavirus-covid-19/
o ices-and-contact-centres
/2LaVwrv
/notices-types. htm#P7_25
link
/offices-and-contact-centres
