The NI Executive issued its 5-stage recovery plan on 12th May 2020, setting out the various stages for easing the lockdown restrictions. As businesses start to re-open in line with the plan, it is important that employers implement and adhere to health and safety guidelines to protect the well-being of all employees.

Employers have an ongoing duty of care towards their employees “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” as per the Health and Safety at Work (Northern Ireland) Order 1978. A breach of that duty is a criminal offence and can be relied upon in civil claims.

Employers can evidence that they are acting with reasonable care if they follow the up-to-date government guidance. This guidance is not legislation, however, and employers have a duty to assess the risks in their business, to set up a safe system of work and to implement that system. A risk assessment should be undertaken, and records should be kept of all measures implemented.

The UK Government has issued guidance to employers for the steps and precautions that should be considered when re-opening businesses. Specific guidance for different industries can be found on the government website, It is recommended that all employers should take time to review the guidance in detail before re-opening. In summary, the guidance is as follows:  

  1. Allow your employees to work from home if they can fulfil their work obligations from home. This remains the message from the UK Government and NI Executive;
  1. Social Distancing – this is paramount. The 2-metre rule should be implemented within the workplace and everything should be done to ensure that all employees comply. This may mean rearranging offices to ensure there is a safe distance between people, staggering start and finish times and implementing a one-way system. For some companies social distancing will not always be practical and so, in these circumstances, the guidance highlights the importance of increased hand washing and cleaning of surface areas, limiting the time that employees work within 2 metres of each other, attempting to work side by side rather than face to face, and limiting the teams involved;
  1. Install partitions and barriers, such as screens, if social distancing is not possible (e.g. at reception areas);
  1. Keep the same people working together on shifts to limit interaction;
  1. Hand washing and hygiene– employees should be reminded of the requirements to frequently wash hands for twenty seconds, to dispose of tissues after use and to keep their workstations clean and tidy;
  1. Hand sanitisers should be provided in multiple areas;
  1. Cleaning – this includes cleaning of communal equipment after every use (e.g. photocopiers, door handles, handrails etc) and increased cleaning of the general workplace and toilets;
  1. Equipment – where possible do not share equipment (e.g. pens, computers etc) and use own tools;
  1. Clients/visitors/customers – where possible remote meetings should be undertaken. If people must come to your place of business social distancing must be adhered to and hand sanitiser provided. Try to limit the number of people entering at one time.

What if an employee refuses to return to work citing COVID-19 concerns?

In general, an employee’s refusal to attend work will lead to disciplinary action. Employees are, however, protected from suffering a detriment on the grounds of health and safety if they hold a reasonable belief that there is a serious and imminent danger in the workplace (s.68 Employment Rights (Northern Ireland Order) 1996). Therefore, if an employer fails to implement strict safety measures, the employee may be justified in refusing to come to work.

If the employer adheres to government guidance, and implements the necessary safety measures, disciplinary action may be justified against an employee who refuses to work. Each case will be judged on its own merits so legal advice is recommended before taking action against an employee.

If an employee raises a concern in the workplace in relation to health and safety measures, an employer should investigate the concern in line with its own policies and procedures.

This is an ongoing situation and employers should ensure they take up to date legal advice before taking any action against an employee.

Should you have any queries in relation to the article please contact our Employment Department:

John McShane – or 07590775391

Judy Hamilton – or 07736284764