The Health and Safety at Work Act 1974

The Health and Safety at Work Act 1974 sets out the overarching legal framework for health and safety legislation in the UK. It lays down the basic duties on all businesses in the UK to protect the health, safety and welfare at work of employees and those not in their employment so far as is “reasonably practicable”.

What is “reasonably practicable” requires an assessment of the activity taking place, the risk of harm arising from that activity, the seriousness of the harm that may arise and the measures that could be taken to reduce, or eliminate, that risk. What is “reasonably practicable” will therefore depend on the specific circumstances of any given activity.

The Act also places a duty on employees to take “reasonable care” for their own and others’ health and safety, and to co-operate with others. It is of note that the employee’s duty has a lower threshold than the employer – to take “reasonable care”, as opposed to doing all that is “reasonably practicable”. It is also of note that this provision is rarely enforced. However, it can be used to remind employees that they have to take responsibility for their own safety and for that of others, including by complying with safety procedures put in place.

The Health and Safety at Work Act 1974 is underpinned by a whole raft of regulations which set out additional obligations on employers either generally or by reference to specific industries or specific risks.

Management of Health and Safety at Work Regulations 1999

For the purposes of returning to work under COVID-19, an important obligation on employers is set out in the Management of Health and Safety at Work Regulations 1999, which require all employers to prepare a “suitable and sufficient” risk assessment. The risk assessment must be written down where the employer employs five or more people.

Government guidance

On 11 May 2020, the Government issued guidance for “Working safely during COVID-19 in construction and other outdoor work”.

This 31-page document is designed to help employers, employees and the self-employed understand how construction work can be undertaken as safely as possible to minimise the risk of disease transmission. It covers 8 broad headings:

• Thinking about risk
• Who should go to work
• Social distancing at work
• Managing your customers, visitors and contractors
• Cleaning the workplace
• Personal Protective Equipment (or PPE) and face coverings
• Managing your workforce
• Inbound and outbound goods

This Guidance makes it clear that it is the responsibility of each employer, having regard to the Guidance, to assess the risks which arise in the specific place of work and to consider how the Guidance can be implemented in a way that makes the place of work as COVID-19 secure as is reasonably practicable.

The Site Operating Procedures

The Government’s Guidance has been backed up by Site Operating Procedures published by the Construction Leadership Council. Version 5 of these Site Operating Procedures was published on 4 July 2020.  In summary, they provide that:

• Workers should travel to site alone wherever possible. If journeys are being shared, keep to team-sharing, increase ventilation and ensure regular cleaning.
• If private transport is not available, consider staggering start and end times to avoid public transport during the rush hour.
• Hand cleaning facilities (ideally soap and water) should be provided at entrances and exits, as well as throughout the site so that workers can wash their hands regularly.
• Consider site access and egress points, which are a high risk area where it can be difficult to maintain social distancing. Efforts should be made to:
  • Reduce visitors
  • Stagger start/end times to reduce crowding
  • Use signage
  • Implement one-way systems
  • Implement regular cleaning, particularly in areas where workers gather or which have high levels of footfall, common areas and touchpoints.
  • Control toilet facilities to reduce the number of people using them at any one time and to maintain social distancing.
• Careful thought should be given to canteens and rest areas, for example by:
  • Encouraging workers to bring their own food
  • Where there are no practical alternatives, canteens can remain open but should only provide pre-prepared wrapped foods
  • Consider increasing the number or capacity of facilities
  • Stagger break times
  • Crockery, eating utensils and cups should not be used unless they are either disposal or are washed and dried between use
  • Use contactless payments where possible
  • Monitor compliance.
• Similar guidance is given in respect of changing facilities, showers, etc.

These procedures make it clear that sites should not use PPE for coronavirus where the above measures cannot be met.

Records

It is important that appropriate records are kept to demonstrate compliance with statutory obligations in case regulators ask for evidence in the future. This may include risk assessments; photographs of, for example, signage, work stations, barriers, rest areas and others measures to enforce social distancing; training records; and toolbox talks. Ideally records should be kept electronically for safe storage and easy retrieval.

Enforcement

The Health and Safety Executive (HSE) is the main enforcing body for health and safety obligations at workplaces, including construction sites.

In the wake of COVID-19, the HSE had paused all but essential enforcement.  However, as people are returning to work, the HSE is adjusting its focus and has said it will now be carrying out more site visits.

To support this, the Government has provided a £14m injection of cash to pay for extra call centre employees, inspectors and equipment. In a statement on its website, the HSE says that it is going to resume targeted proactive inspection of high risk industries, and carry out work to check that appropriate measures are in place to protect workers from COVID-19.

In addition to the Government guidance referred to above, the HSE has also produced its own guidance as to how to comply with legal obligations in the context of COVID-19.

In terms of enforcing compliance with health and safety obligations, the HSE has several methods at its disposal. In minor cases of infringement, an inspector may give advice or guidance where it considers it to be appropriate.

However, where the HSE considers that health and safety duties are not being met in a manner which is more serious, it will consider taking formal enforcement steps.  There are a number of forms this might take:

• An Improvement Notice could be issued. This is used where there are health and safety breaches which an inspector considers will continue or be repeated.
• An inspector could also issue a Prohibition Notice. This is used where an inspector is of the opinion that an activity which is being carried on involves a risk of serious personal injury.
• As breaches of the health and safety obligations referred to above are criminal offences, a decision could be made to prosecute.

The breach is likely to relate to a failure to do all that is reasonably practicable to protect the health and safety of employees and others affected by the operation of the business. Therefore, in order for a criminal offence to have been committed, the HSE will not need to prove that harm occurred to someone as a result of the failure. In the context of COVID-19. This means that the prosecution will not need to prove that someone actually caught the virus. The relevant issue is likely to be whether all reasonable steps have been taken to protect against the risk.

Often the defendant in this type of prosecution is a company, but the HSE has the power to prosecute individuals. If found guilty and convicted, the sentence imposed by the Court is usually a fine – although the Courts do have the ability to sentence individuals to imprisonment.

The Court must apply a matrix when calculating the fine. Various factors are taken into consideration, including mitigating and aggravating features. However, a key factor in the level of fine for a company will be its turnover (not profit).  So even though no one may have been harmed, or contracted COVID-19, as a result of a failure to comply with the requirements, the fine could be substantial – potentially hundreds of thousands of pounds, and if the company is large enough millions.

If convicted, the defendant is usually also ordered to pay the prosecution’s legal fees.

In addition to any fine or prosecution costs someone is ordered to pay by the Courts, if the HSE visits a workplace and finds a material breach of health and safety law, it will charge for the time taken to identify the problem and rectify it.  This is known as the fee for intervention. The current charge is £157 per hour. Fees can be considerable because the HSE can take many hours to investigate and follow up.

In addition to possible criminal enforcement action, there are other things to consider which may arise because of a breach: 

• Firstly, there is the negative publicity which may result if someone becomes ill through contracting the virus, and the significant damage this could cause to the business.
• Secondly, if there has been a death from COVID-19 which may be linked to unsafe working practices on a construction site, there is likely to be an inquest.
• Thirdly, although there are likely to be issues surrounding whether the virus was contracted as a result of unsafe working practices, because it may be difficult to establish where the virus was contracted (the test which the Courts will apply is the balance of probability), there is also the possibility of a civil claim for compensation made by the person who contracted the virus, or by their family if they die.