On the 14th July the government announced new legislation that would come into effect on the 24th July making it mandatory to wear face covering in shops across the country with hefty fines to ensure compliance. Whilst there is still inconclusive evidence as to the general effectiveness of face coverings in preventing the spread of Covid-19, it would appear that this is the latest in a number of the government strategies to kickstart the economy and encourage people out of lockdown, back to our city centres and spending in the High Streets.
As a nation we have taken on huge responsibilities for our own personal safety but when it comes to the workplace, the bulk of that onus is on the employer. The government’s Covid-safe Workplace poster lays out five elements of compliance, enabling employees to return to the workplace. The first condition is that the employer has to have carried out a risk assessment which must be shared with all of the employees within the workplace. Employers are encouraged to discuss the risks identified and the mitigating factors they are implementing to keep staff safe. Interestingly, although shoppers will be required to wear masks, the same does not appear to be the case for shop workers.
Under current legislation an employee has the right to leave work at any time if they feel there is an immediate risk to their personal safety in the work environment. Employees also have a duty of care towards their colleagues and most employment contracts put an obligation on employees to comply with health and safety policies and procedures. If someone refuses to follow a reasonable health and safety request, it could result in disciplinary action, up to and including dismissal.
We are now expecting significant changes to the Government Guidance on workplaces. At the current time, the advice remains that employees should work from home where possible and practical to do so. From 1st August, the responsibility shifts significantly so that it is up to employers to decide whether and how to bring employees back to the working environment. This means that the burden of responsibility is being pushed back onto employers.
However, bringing staff back into the office is not as simple as it seems. We’re already seeing problems getting staff to come back into the workplace, not because the workplace isn’t safe, but because staff don’t perceive their journey to work to be safe.
The use of public transport is no longer restricted to essential travel, but commuters and shoppers are being encouraged to back into our cities, wearing masks on public transport and in shops. Not all commuters are ready to take this risk, especially if they have health issues.
In a recent statement Health Secretary Matt Hancock said that while people are with the same group of people in a ‘bubble’ for continuous amounts of time, it’s not necessary to wear a face mask. This applies to children in school and employees in a workplace.
But what happens when it is impossible to keep your work bubble isolated? If your business operates in a shared building, there is no way of limiting your interactions to a defined bubble of people. Further, if your office space is based on the second floor, who then is responsible for the hygienic maintenance of the lifts? If then we say that the lifts are out of use in an attempt to mitigate the risks, you may find a discrimination claim being brought against you, as your workplace is no longer accessible to those with disabilities preventing them from using the stairs. If your office space has shared kitchen, toilet or café facilities, who is ensuring adequate cleaning regimes are in place? It may be the employer’s job to find out and to ensure that the landlord is complying with their health and safety obligations. Alternatively, in a single occupancy building, the employer must take all reasonable steps to ensure that the office is covid-safe.
What happens if the government does choose to enforce the wearing of face masks in work places? Some people will take the view that wearing a face covering to work won’t do any harm and so they might as well, and for the vast majority of people this may be true, but in situations like this we always have to think about those it will effect. There will people who can’t wear face masks. Potentially those who have mental health issues or learning disabilities, people who suffer from claustrophobia or even people who wear glasses or hearing aids. Think about someone who is deaf, who operates completely normally in the work environment by lip reading, if everybody around them is suddenly wearing a mask over their mouth, they are suddenly no longer able to lip read and therefore no longer able to operate within the working environment. So, you risk ending up with a disability discrimination claim because they aren’t able to work!
What about a team who are on the phone all day with customers, the mask can be very uncomfortable and can hinder clear communications. Is business impacted?
Some people may choose to wear a mask at work some of the time, perhaps when meeting clients, attending meetings, or moving round a building. Others may prefer not to wear a mask, and currently they have the choice whether or not to do so in their work environment.
Communication is going to be essential. If some employees are worried and would prefer everyone to wear a mask, they are going to be in conflict with those who prefer not to or are unable to do so. Employers are going to need to navigate this tightrope very carefully.
It is a minefield, but I think it’s a minefield that we are going to find a way to navigate through because until we have got a vaccination or until scientists really understand this virus, employers need to do the best they can with limited information, a workforce to keep safe and a business which needs to thrive.
