12 May 2020

Ensuring that the workforce can return to work safely will be at the forefront for retailers starting to plan the re-opening of high street stores as the restrictions are eased in phases starting no earlier than 1 June.

We have outlined below a number of key questions in relation to health and safety matters that we have been asked by businesses to assist with this planning process.

The legislation and guidance is constantly evolving. It is therefore important that retailers keep the situation under constant review. The position set out below is accurate as at 12 May 2020.

What are the legal duties upon retailers?

To take all reasonably practicable steps to ensure the health and safety of anyone, including employees and non-employees (such as delivery drivers and shoppers in stores), who might be placed at risk by your business activities.

This includes providing a safe working environment by taking reasonably practicable steps to stop the spread of COVID-19 and ensuring that employees can work from home safely as explained in more detail below.

What general approach and steps should businesses be taking?

The risk of COVID-19 should be assessed and appropriate control measures should be put in place to prevent the spread of the virus in the same way as other workplace hazards.

Guidance has been published by the government (available here) to assist retailers with carrying out their risk assessment and provides practical guidance in relation to the control measures that retailers may take to create a "COVID-19 Secure" workplace.

Detailed guidance for specifically for retailers has also been published by the British Retail Consortium (BRC), which is available here and discussed in our article here.

What issues should be considered as part of a COVID-19 risk assessment?

Retailers should assess the risks of COVID-19 in relation to everyone who may be placed at risk by their business activities including employees working in stores, distribution centres, offices and at home as well as people who are not employees such as shoppers, suppliers and contractors.

The risk assessment process should involve identifying workers who are especially vulnerable to COVID-19 to ensure that the appropriate adjustments/control measures are in place to protect those individuals, particularly those who fall within the 'clinically vulnerable' and 'clinically extremely vulnerable' criteria.

In addition to the factors outlined in the government guidance referred to above, retailers should consider:

  • the impact of any changes made to control COVID-19 on existing risk assessments and control measures.

For example, distancing measures may impact the safety of certain tasks and new risks may be created such as the introduction of greater volumes of hazardous chemicals like cleaning products;

  • how to manage reported cases, or reported symptoms, of COVID-19
  • the impact of staff absences including ensuring that sufficient and suitable cover is available, for example, for first aid, general training and supervision, and to prevent fatigue and work-related stress.

Government guidance emphasises that that employers have a duty to consult their workforce in relation to health and safety matters, and must consult with the health and safety representative selected by a recognised trade union or, if there isn’t one, a representative chosen by workers.

It also sets out an expectation of larger retailers (over 50 workers) to publish the results of their risk assessment on their website.

Does the fact that high street stores have been unoccupied for some time pose any particular safety issues?

Potentially, yes. It is easy to overlook the health risks posed by the condition of a premises and its facilities given the focus of the guidance upon managing people. However, the risk assessment process should consider the risks posed by stores before they are re-occupied including assessing:

  • the risk of Legionella and Legionnaires' disease from, for example, water systems
  • whether any ventilation systems need to be serviced or adjusted
  • the safety of any plant and equipment, particularly if it falls within a statutory testing and inspection regime such as lifts and lifting equipment (e.g. fork lifts)
  • the functioning of any safety systems including emergency lighting and fire detection systems
  • the general state of hygiene and cleanliness of the premises including any vermin control measures.

Do retailers have to conduct contact tracing if an employee has tested positive for or is suspected of having COVID-19?

This is addressed in our briefing note available here.

Staff are working from home, what steps should we be taking to ensure their safety?

Retailers have a duty to protect employees from the health risks of working with display screen equipment, such as laptops and tablets, under the Health and Safety (Display Screen Equipment) Regulations 1992.

Businesses should therefore be providing employees with training, information and equipment to allow them to work from home safely as well as conducting workstation assessments if homeworking will be a long term arrangement. Information could include, for example, instructions on how to set up a laptop correctly at home to avoid muscular pain. Further guidance is available from the HSE here.

The mental health of homeworkers should also not be neglected. Regularly keeping in-touch will help to prevent home workers from feeling isolated and unsupported by colleagues.

Should first aiders be taking any extra precautions?

Yes, control measures should be put in place to protect first aiders from the transmission of COVID-19. Retailers may find the government guidance for first responders (available here) helpful. The HSE has also published guidance relating to ensuring that sufficient cover is available to provide first aid and the relevant qualifications (available here).

Is there any guidance in relation to PPE and the fitting of face masks?

Yes, this is addressed in detail in the government and BRC guidance referred to above.

Government guidance states that the precautionary use of PPE to protect against COVID-19 should not be encouraged outside of a clinical setting. The virus should be managed through social distancing, hygiene and fixing team or partnering, not through the use of PPE.

Do I need to report cases of COVID 19 under RIDDOR?

It depends upon the circumstances. The current guidance from the HSE states, in summary, that cases of COVID-19 are reportable under RIDDOR when:

  • an unintended incident at work has led to someone’s possible or actual exposure to coronavirus – a dangerous occurrence
  • a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work - a case of disease
  • a worker dies as a result of occupational exposure to coronavirus.

Further information and support

Should you have any queries or require assistance with these issues, please do not hesitate to contact the specialist health, safety and environmental team at Womble Bond Dickinson, who would be happy to help.