Over the line

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 office 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 difficult 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 sufficient” 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 difficult 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