When are we allowed back to the office – how far can we push the boundaries of the Covid-19 rules and stay within the criminal law?
As lockdown eases, many of you are again being pressed to get staff back to normal working from the office. Organisations can make their own decisions about how firmly to push; but decisions should be made against a backdrop of understanding where the law draws the line.
According to Dr Simon Joyston-Bechal (Barbour 26th April 2021) we need to consider to what extent do the Health Protection Regulations 2021 permit a return to the office in England? And once people are back in the office, are social distancing arrangements a legal requirement?
The lockdown rules have never criminalised attendance in a workplace that is “reasonably necessary for work purposes”, save for criminalising at different stages the opening of various establishments, such as shops and hospitality venues. Offices have not been on the banned list, so throughout the pandemic workers have been (and are) allowed to attend if this “reasonably necessary” exception applies. There is nothing to restrict less vital attendance so long as it is reasonably necessary for the employee’s purposes. Some amount of flexibility can be embraced, rather than feared, so long as the decision was properly considered and the reasoning has been documented. Employers will be on stronger ground if they consult with staff, seek to accommodate concerns and adopt a transparent approach where possible.
Allowing workplace attendance that isn’t a “gathering” The relevant Steps Regulations won’t be breached by any attendance that isn’t a “gathering”. This is the definition: “a gathering takes place when two or more persons are present together in the same place in order – (i) To engage in any form of social interaction with each other, or (ii) To undertake any other activity with each other” This means that employees are not forbidden from attending the workplace if they remain in a pod without “social interaction” or “any other activity” with people beyond their pods. Attendees using this exception do not need to fall within the “reasonably necessary” exception. Now Step 3 applies the maximum permitted indoor gathering jumps to six. From this stage, employers can allow pods of up to six persons, forbidden from activity or social interaction with others but allowed to conduct activity and social interaction within their pod. Workplace teams could be allocated into pods and there is nothing in law to prevent an employer bringing in multiple pods, or rotating fixed pods for attendance on different days or even rotating employees into different pods on different days. In addition to these pods up to six, anyone else can be permitted to attend outside the pod rules where their attendance is “reasonably necessary for work purposes”. We can hope that the rules will be further relaxed in Step 4 (not before 21 June 2021) and there are currently no stipulations or restrictions for that stage. The Health and Safety at Work Act 1974 (HSWA) creates a criminal offence for employers who fail to take reasonably practicable measures for health and for safety. The Health and Safety Executive consider that social distancing for purposes of Covid-19 does fall within an employer’s HSWA responsibility. On this basis, the general requirements of HSWA will be construed taking into account any relevant guidance; and the various pieces of Government guidance on social distancing thereby get elevated in legal status. It is not of itself a criminal offence to breach the guidance on social distancing, but there is a risk of prosecution under HSWA unless the employer can show that the guidance went beyond what was reasonably practicable.
To stay on the right side of the law, employers will want to follow the Steps through successive relaxation. if attendance is “reasonably necessary for work purposes”. They can also attend in pods so long as employers are able to demonstrate that they have established and monitored clear rules preventing employees from breaching the pods and socially interacting, for example in a shared office kitchen area. The interplay between the criminal law and the guidance remains opaque to many. We at OJ Health and Safety can make your office COVID free without the hassle.