Last week, I hosted a webinar on planning, from a health and safety perspective, for the easing of lockdown which can be watched here. That focused on the need to review risk assessments against the backdrop of the Coronavirus pandemic, and to put in place safe systems of work to minimise the risks associated with COVID-19, so far as is reasonably practicable.
One of the concerns raised by the delegates related to the interface between a business and its customers, where there was a need for the one to visit the other. It almost goes without saying that that scenario, common though it is, presents a particular challenge in the current climate.
So what is the approach that the law takes?
The legal duties
In previous blogs, I have been considering liability for the wrongdoing of contractors, and my discussion of the criminal implications in the health and safety context can be found here. Importantly, the duties imposed by the Health and Safety at Work etc Act 1974 and the regulations:
- Cannot be delegated; and
- Run alongside the duties of others.
Remember that duties to ensure that people are not exposed to risks to their health and safety, so far as reasonably practicable, are owed to employees and non-employees alike. The implications of that are that, where the workers of two employers come together, those employers will not only need to safeguard their own team, but they will also have to take steps to mitigate the risks created by their own work to the workforce of the other.
Another facet of those principles can be found in the Management of Health and Safety at Work Regulations 1999 which, at Regulation 11, deal with “co-operation and co-ordination.” What is required is that, if there is a temporary or permanent sharing of a workplace, the two duty holders must:
- Co-operate with one another in order that they can each achieve the standards of health and safety required by law;
- Co-ordinate their efforts to mitigate risks; and
- Inform the other about the risks arising from their work.
The facts of a case that we dealt with involving Whirlpool illustrate the importance of this. One Saturday, the company had three types of maintenance activity being carried out at its factory outside Bristol. One of those involved maintenance of an overhead conveyor system, and one of the others was work being carried out to a fire alarm system by a contractor. In summary, there came a point when the fire alarm contractor was working at height using a scissor lift, out of sight of the maintenance team. The maintenance team started the conveyor, which knocked the scissor lift over, killing the contractor. Whirlpool was convicted of an offence, an element of which was the failure to properly co-ordinate the two sets of work activities.
In the construction industry, there are often a number of types of work being carried out on site at the same time. The Construction (Design and Management) Regulations 2015 extend the duties of co-operation and co-ordination. In essence, contractors have duties to feed safety relevant information to the principal contractor, who has overall responsibility for organising co-operation on site and implementing systems of work in a co-ordinated manner to achieve the statutory objectives. The contractors’ duties then include a requirement to follow the directions given by the principal contractor.
The examples of this going wrong in the construction industry are numerous. In one case, a company named Capstone Building was convicted of an offence when a wall collapsed during a concrete pour, killing a bricklayer working nearby.
Furthermore, offences may be committed by those not directly associated with the construction work. McColls was convicted of an offence after it failed to co-ordinate its retail activities with a contractor remodelling a store’s front doorstep, which resulted in two accidents on two consecutive days involving customers of the shop. In another case, Marks & Spencer was convicted of offences which included its failure to ensure that there was sufficient time and space given over to asbestos removal works in a store which continued to trade throughout the project. Both of those cases also saw the construction companies being convicted of breaching their concurrent duties.
Finally, but importantly, the health and safety law regulates work activity. It does not impose duties on those not at work. That therefore creates a need to consider separately the risks associated with visiting domestic customers’ sites.
Visiting customer premises and being “COVID Secure”
At risk of over simplifying what is a complex task, after a risk assessment, “COVID Secure” safe systems of work will no doubt be geared towards:
- Having as little physical contact between people as possible, including maintaining social distancing when it is not reasonably practicable to avoid contact altogether;
- Using protective equipment;
- Hygiene and sanitisation; and
- Training and monitoring the system in practice.
The Government guidance notes on working safely during Coronavirus provide details of the sorts of standards which, it will perhaps be said, are the benchmark to be achieved in discharging the legal duties.
Co-operation and co-ordination involves sharing information about the COVID-19 risk assessments and safe systems of work with the customers that will be visited. In a business to business context, the customer can be asked to reciprocate. Clarification may be requested when information is unclear; for example, one is likely know the layout of the premises better than the other – can a plan or photographs be provided?
The two should then be in a position to plan how they may work together as safely as is reasonably practicable. For instance, it may be possible to carry out their respective work activities at the premises at different times of day, or in a way which segregates the work by some physical means.
Visiting customers in their home environment will similarly require planning, although, in this scenario, that burden, from a legal point of view, is on the business. That will be likely to require communicating with customers prior to arrival at their homes to gather information and to explain what steps are going to be deployed to minimise the risks associated with Coronavirus during the visit, and the expectations made of the customer to achieve that.
If you have a query about visiting customer premises during the Coronavirus pandemic, please contact our regulatory solicitors by emailing firstname.lastname@example.org or calling 01202 786340.