What is the over-riding statutory duty for employers to ensure the health and safety of employees?
It is worth pointing out that, despite all the guidance, survey results and other advice about managing Covid-19 H&S risk in the workplace, the law has not been changed. None of the guidance is codified by regulation/legislation, which means that you are managing this risk in the context of existing H&S law.
In very simple terms, HASWA74 requires employers to take “all reasonably practicable steps” to ensure the health and safety of its employees (and anyone else affected by your business).
“Reasonably practicable” means to balance risk reduction against the time, money and effort required. If measures are grossly disproportionate, you wouldn’t be expected to take them, but there is a strong presumption in favour of taking any steps which will protect workers.
As part of managing the health and safety of your people, you must control the risks in your workplaces. To do this, look for what might cause harm to people while they work and decide whether you are taking reasonable steps to prevent that harm. This related duty under MHSWR is to ensure you undertake a “suitable and sufficient assessment of risks.”
Related FAQs
No. You should always treat employees consistently and fairly, but this doesn’t mean treating them all the same, or applying the same requirements. For those employees who have been homeworking and doing so without any problems, then they should be allowed to continue to do so.
We would anticipate that the vast majority, if not all, businesses will be approaching the return on a phased basis, which inevitably means some employees returning to work sooner than others. In reality then, you aren’t treating everyone the same, but try to be fair and consistent; you need to do what works best from a business perspective, but can you rotate people, require them to come in at different times etc. Where people perceive that the planned return is being worked out fairly they are far more likely to buy into this, which will help avoid resentments building up between colleagues.
From 1 July 2020 the furlough scheme has been operating more flexibly.
The key changes from 1 July 2020 were:
- All furloughed employees are subject to the new flexible furlough rules and the new basis for calculating claims
- Furloughed employees can be brought back to work on a part-time basis for any amount of time and can work any work pattern
- Employers can claim for the hours not worked compared the hours the person would normally have worked in that period
- There must be a new written furlough agreement in place to record the agreement with the furloughed employee to return to work part-time
- The new agreement (including a collective agreement) must be made before any period of flexible furlough begins but it may be varied at a later stage if necessary. The agreement must be incorporated into the employee’s contract of employment, either expressly or impliedly
- Employers must keep a record of this agreement until at least 30 June 2025, and they must also keep a record of the hours the furlough employee worked and the hours that they were furloughed
- Employees can be furloughed from 1 July 2020 for any amount of time and more than once
- However, if you re-furloughed an employee after 10 June but before 1 July 2020, they had to be furloughed for an initial period of three consecutive weeks
- Claims for payments under the scheme must not cross calendar months so if you are claiming for the initial three week period of a re-furloughed employee who was furloughed on 12 June for example, you must submit separate claims for the dates in June and July
- Although flexible furlough agreements can last any length of time, you should only submit a claim to HMRC once a week.
The government introduced The Working Time (Coronavirus) (Amendment) Regulations 2020 to amend the Working Time Regulations 1998 to allow for the change.
As we all adjust and adapt in line with the Government’s guidance throughout this uncertain time, we must consider how we can revise current processes and implement new ones to maintain effective and compliant ways of working. We have identified several key issues that all housing providers should consider.
Protocol Compliance
Housing providers will continue to receive new disrepair claims. Throughout the disruption caused by coronavirus, landlords will still be expected to respond to these claims and comply with the Pre-Action Protocol for Housing Conditions Claims whilst doing so. We address the issue of disclosure in particular below.
Letters of claim will continue to be sent by post to your Registered Office, and the deadlines will run from the date of deemed service. Ensure you have systems to enable you to scan correspondence and forward it to the responsible officer who will handle the claim so deadlines are met.
Under the Protocol, the deadline for disclosure is 20 working days from deemed service of a letter of claim (2 working days after it is sent). So, for example, a letter dated 2 March 2020 would be deemed served on 4 March 2020 and disclosure would therefore be due by 1 April 2020. All housing providers must continue to comply with the Protocol and so landlords should begin preparing now.
Failure to meet deadlines often result in the issuing of further applications to court by tenant’s solicitors which in turn will lead to unnecessary costs orders against landlords.
Therefore, all records, particularly relating to customer contact and repair logs, should be held electronically. If required, this will allow for such documentation to be redacted for GDPR purposes remotely and disclosed to the tenant’s solicitor simply and efficiently.
Remember it is possible to request an extension to all Protocol deadlines and it is inevitable in these unusual times, this will need to be utilised, and should not be refused. Request extensions to deadlines at the earliest opportunity to enable an achievable timescale. It would be a difficult lawyer that would not agree to such a request.
The amount an insurer charges for providing cover is a critical aspect of the underwriting process. The premium must be sufficient to cover expected claims but must also take into account the possibility that the insurer will have to access its capital reserve –it is risk assessment based and the greater the risk, the higher the premium. Historically, insurers of high-rise buildings would have only had to prepare for a loss caused by damage to just a few flats within a building. That is because the design and construction of that building, with the right materials and fire safety provisions in place, should have limited the spread of fire and allowed the damage to be contained –or at least make this an extremely low risk. Now we know that many buildings have been designed, built and signed off in a regulatory system that an independent Government review has found was not fit for purpose. Premiums will reduce overtime but will be dependent upon the perceived level of risk reducing as the regulatory regime, BSA and BSR become more established.