28 July 2021

As many businesses return to the workplace, Vikki Watt considers Regulatory enforcement trends over the last fifteen months.

The HSE are continuing their steadfast role in ensuring that employers protect the health, safety and welfare of their employees, so far as reasonably practicable, as many workplaces make the transition to communal working areas and offices. The HSE are continuing their spot check visits across all sectors with an enhanced presence in sectors perceived to be higher risk; such as construction, manufacturing and the care sector, whilst seeking to maintain proportionality in their enforcement decisions and behaviours.

The statistics and information published by the HSE to date show that over the past fifteen months, there has been a fairly steady increase in Regulatory enforcement. Although there have been no successful prosecutions as yet (which is understandable given the timing of matters), we can see trends in the nature of potential breaches occasioning the service of Improvement Notices, for example, (which is a tool the HSE will use to work with the duty-holder to seek to ensure compliance).

The most commonly perceived breaches all centre around the general duties set out in the Health and Safety at Work etc Act 1974 and relate to failures to have in place suitable and sufficient hand hygiene procedures, social distancing measures and welfare facilities. Unsurprisingly perhaps, many of the early cases related to perceived deficiencies in transmission control procedures as workplaces sought to implement control measures to deal with the new risks. Crucially, there were also failures to produce appropriate COVID-19 related risk assessments and to ensure staff were aware of the new infection control procedures which ought to have been in place.

Interestingly, as we progress through this year, we are seeing slightly different risk profiles in the type of purported breaches in relation to which the HSE are serving Improvement Notices. It is perhaps human nature to want to have a long-awaited conversation with a colleague or friend out-with working hours, however, cautious employers should still seek to make it clear to employees what their expected procedures are for entering/exiting the workplace. Royal Mail Group Limited were served with an Improvement Notice in April 2021 for failing to assess, manage and control risks for employees doing just that. A number of employees were congregating before and after their shifts without any social distancing measures being enforced.

COVID-19 is not an industry or sector specific problem. Whilst some businesses might have higher risks, and therefore a more onerous task of mitigating those risks, COVID-19 does not discriminate based on job title. Furthermore, it is not just the responsibility of employers. Employees are also responsible for complying with appropriate control measures to keep themselves and others safe under the Health and Safety at Work etc Act 1974. Therefore, we all have a duty to act in line with our employer’s directions and public health guidance.

Please contact us for further information on what you can do to protect your business and workers as you prepare for a return to the workplace and to ensure compliance with the latest rules during this time of transition for many.

Vikki Watt vwa@bto.co.uk / 0141 221 8012
Lucia Spadaro lsp@bto.co.uk / 0141 221 8012