David Gilmore looks at what high street law firms should consider when returning to office working, including how to conduct the mandatory COVID-19 risk assessment
You will have seen or heard the latest guidance from the government, published on 11 May, which covered, in part, a move to returning to the workplace. The Law Society has produced a practical framework on the steps that need to be taken to ensure safe return.
Five key points were highlighted by the government:
- work from home, if you can and only go to the office if you must
- carry out a COVID-19 risk assessment, in consultation with workers, staff groups or trade unions
- maintain two metres social distancing, wherever possible
- where people cannot be two metres apart, manage transmission risk
- cleaning processes should be reinforced.
There has been much confusion about the applicability of the government’s position to real life. This article is intended to summarise the present position and provide some guidance about what all this means for law firms.
Does the guidance suggest that we now have to start encouraging our staff to recommence working from our office?
The government’s current advice for offices is that staff should work from home, if they can. The government’s advice remains that all reasonable steps should be taken by employers to help people work from home.
The government guidance Working safely during COVID-19 in offices and contact centres. includes a summary of the position and a series of checklists which you must read. If you are considering re-opening your office (or if your office is still open), requiring more employees to recommence working from the office, it will help you determine if your proposals are justified and can be implemented within the government’s current guidelines.
If our office is currently closed, do we have to open it?
The government’s position does not mean that law firms who have had to shut their offices should now re-open. The primary position is that if a firm can implement home working for its staff, then it must continue to do so.
Obviously, if some of your employees are on furlough leave, they cannot work from home. The guidance is not suggesting that you need to cancel the furlough leave for any staff member and suggest that they must start to work again from the office. If they are currently on furlough leave, this must mean that there is still insufficient work for them to do or that there are other reasons why they cannot resume work.
However, if you feel that you have no option but to re-open your office now and allow some employees to work from that office, then the guidance permits you to do that. For instance, now jury trials have restarted, some firms may require certain staff to be able to access the office to prepare court bundles where this cannot be achieved via home-working arrangements. There may be other reasons to re-open your office, such as to ensure business continuity, but compliance with the government guidance is required. Many staff members will understandably be very resistant to any potential change which could be a threat to their health, and any change must be fully justified because there is no other viable option.
Do we have to do a COVID-19 risk assessment?
Yes: all employers, irrespective of whether they feel they need to re-open their office at this time, must conduct a COVID-19 risk assessment.
If you have fewer than five workers, or are self-employed, you don’t have to write anything down as part of this risk assessment. If you have five or more workers, the assessment must be documented in writing.
The guidance suggests that, if possible, employers should publish the results of their risk assessments on their website, but this is not said to be mandatory. If a business has over 50 employees, the government “expects” the employer to publish the results in this way, but again, it does not say if this will be enforced.
The assessment is not intended to risk-assess individual home-working arrangements, but to provide an overall assessment of the risks to staff and other people from your current arrangements and, importantly, any change to working arrangements, such as a return to office working.
The government’s guidance is designed to operate within the current health and safety employment and equalities legislation. In particular, all firms already have a statutory duty under the Health and Safety at Work Act 1974 to undertake a health and safety risk assessment. Where a firm has more than five or more employees, there is a duty to document this HS risk assessment in writing.
The assessment process must be conducted and any control and protective measures implemented before the office re-opens. This may of course take many weeks, so any rush to implement any recommenced office working is clearly not advisable or practical.
How do we conduct the COVID-19 risk assessment?
The risk assessment must be carried out in consultation with your workers (or trade unions if relevant), to establish what guidelines and practical measures to put in place. This is especially important for any return to office working, whether this is envisaged by you to be implemented soon, or at some point in the coming months.
The government’s guidance states as follows.
“Employers have a duty to consult their people on health and safety. You can do this by listening and talking to them about the work and how you will manage risks from COVID-19. The people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely. Involving them in making decisions shows that you take their health and safety seriously….
“At its most effective, full involvement of your workers creates a culture where relationships between employers and workers are based on collaboration, trust and joint problem solving. As is normal practice, workers should be involved in assessing workplace risks and the development and review of workplace health and safety policies in partnership with the employer.
“Employers and workers should always come together to resolve issues.”
The assessment does not need to be cumbersome. The government’s guidance clarifies that: “A risk assessment is not about creating huge amounts of paperwork, but rather about identifying sensible measures to control the risks in your workplace. … Your risk assessment will help you decide whether you have done everything you need to.”
In particular, the firm should:
- identify and evaluate the risks to health and safety from COVID-19 in the workplace and in other locations where employees, homeworkers or others may operate from or visit in the cause of the business
- analyse what the firm is already doing to control those risks, and
- consider other possible measures to reduce, avoid or transfer the risks.
Focus on real risks that are most likely to cause harm, rather than attempting to consider every eventuality.
Once you have formulated a list of the risks, undertake an impact / likelihood analysis for each risk. For each risk, consider whether the impact would be high, medium or low, and whether its likelihood is high, medium or low. This will help you determine the severity of each risk. Where you determine that a particular health and safety concern would have a high impact and is highly likely to occur, you should prioritise the measures you put in place to address that risk.
Once the risks have been identified and evaluated, consider the steps which need to be put in place to mitigate each risk. Consider what you are already have in place to control the risks, and what additional measures need to be implemented in order to properly control the risks.
Once you have identified the risks and what you need to do to control them, put the appropriate measures in place before they are needed.
It is, of course, entirely possible that your risk assessment may determine that the risk to health and welfare of returning to the office would be so severe that it would be very difficult to implement sufficient measures to mitigate against the risks at the current time. This would rightfully mean that your current home working arrangements would have to continue for the foreseeable time. Firms in this position (as many will be) may need to conduct a re-assessment at a later stage, perhaps when the pandemic situation improves and/or the government’s guidance is updated.
How do we document our COVID-19 risk assessment?
We have produced a template risk assessment which you are welcome to use to document the results of your assessment. The Health and Safety Executive (HSE) has also launched an office risk assessment tool.
What happens if we do not conduct the risk assessment?
Where the enforcing authority, such as the HSE or a local authority, identifies employers which are not taking action to comply with the relevant public health legislation and guidance to control public health risks, they will consider taking a range of actions to improve control of workplace risks, in line with existing health and safety legislation.
What practical measures must we implement when we re-open the office?
This will depend entirely on your office space, the number of staff members required to work from that space and the type of work they will be undertaking.
The measures you will need to implement will be determined entirely by your COVID-19 risk assessment. You will need to access the premises and work as a team to determine what measures can practically be implemented. You should use the government’s Working safely during COVID-19 in offices and contact centres guidance as a guide. This contains lists of types of measures that you may need to consider.
Factor in the time it will take you to put these measures into place. For instance, if you determine that you need to reconfigure your desks, work out who will do this and when. You may have identified that you need to purchase certain equipment – such as personal protective equipment or floor tape to delineate safe areas – which may not be readily available at present. You will need to ensure that the equipment is in place and all necessary measures implemented before you change the working arrangements. Even if you are not planning to open the office soon, all firms should consider now what they may need to have in place when they re-open. There may be many months’ delivery time for some vital equipment.
You are at liberty to determine the measures which you regard as suitable for your workspace. There are, however, some minimum requirements that the government will absolutely require you to implement as soon as is practical. These are as follows.
- Maintain two metres’ social distancing, wherever possible
The government’s guidance states that: “Employers should re-design workspaces to maintain 2 metre distances between people by staggering start times, creating one way walk-throughs, opening more entrances and exits, or changing seating layouts in break rooms.”
- Where people cannot be two metres apart, manage transmission risk
The government’s guidance states that: “Employers should look into putting barriers in shared spaces, creating workplace shift patterns or fixed teams minimising the number of people in contact with one another, or ensuring colleagues are facing away from each other.”
- Reinforce cleaning processes
The government’s guidance states that: “Workplaces should be cleaned more frequently, paying close attention to high-contact objects like door handles and keyboards. Employers should provide handwashing facilities or hand sanitisers at entry and exit points.”
- Publish compliance
You will need to display a standard notice confirming your compliance with the government’s guidance on managing the risk of COVID-19 in your workplace, to show their employees, customers and other visitors that you have followed the government’s guidance.
What other information is available?
I encourage all employers to read and consider the HSE’s guidance, which includes some very useful guidance on working safely during the COVID-19 outbreak, including the following.
- The HSE’s short guide to working safely during the coronavirus outbreak, which includes advice on steps you should take to help manage the risks of coronavirus in your business. These include taking measures to work at home where possible, and maintaining social distancing, cleaning and hygiene.
- The HSE’s guide on engaging with workers about working safely during the outbreak.
Are there any other issues to think about?
There may be employment law-related issues to consider. You will obviously need to contact those staff members who you are proposing should start working again from your office. You may need to amend the terms of an existing arrangement, such as in relation to current home working, or even to terminate an existing furlough agreement. These staff members will need to be given an appropriate notice period (such as one defined in any existing agreement), so this period and engagement process must be factored into your planning. If you have any other concerns, you may wish to discuss them with an employment lawyer.