26 May 2022

Workplace safety

Resources on the key issues that employers need to consider in managing a safe workplace, including vaccination and testing policies

UK Government guidance

Employers should keep up to date with the latest guidance relating to workplace safety:

Employers can also refer to information available on the CIPD websites for Asia, Middle East and Ireland.

Workplace safety FAQs

Answers to frequently asked questions about managing workplace safety during COVID-19

The overall gist of the UK Government guidance is that those with COVID-19 should stay at home and avoid contact with other people. Ventilation and cleanliness continue to be emphasised.

Employers have a high degree of responsibility to care for employees and customers and the guidance suggests that precautions should continue, despite the voluntary language used. There are numerous reminders of how employers’ normal legal obligations include a duty to manage risks for the clinically vulnerable and all those affected by their business.

The current guidance for employers in England on reducing the spread of respiratory infections, including COVID-19, in the workplace provides precautions that employers can take to manage risk and support their staff and customers. Please note that from 1 April 2022 this guidance should be read in conjunction with:

Scotland, Wales and Northern Ireland are giving different advice, so employers should ensure they keep up to date with different guidelines in different areas. 
 
The guidance focusses on the following priorities.
 
COVID-19 risk assessments
The guidance emphasises the role of risk assessments in ensuring a safe workplace. From 1 April 2022, the UK Government removed the legal requirement in England for every employer to explicitly consider COVID-19 in their risk assessments but employers must still take responsibility for implementing risk assessments for their workplaces. Employers that specifically work with COVID-19, such as laboratories, must continue to undertake a risk assessment that considers COVID-19 specifically. Other employers can undertake regular risk assessments that includes the risk of COVID-19.
 
Failure to carry out a suitable risk assessment and implement preventative measures may be a failure to take reasonably practical steps to manage risks in the workplace. There is also a legal duty to consult all workers and trade union or elected health and safety representatives on health and safety matters. 
 
Carrying out a suitable risk assessment, requires employers to consider the different ways the virus can spread (contact with an infected person, airborne particles, and contaminated surfaces) and implement measures to reduce the risk in each of these three different ways.
 
Employers with fewer than five workers do not have to write anything down as part of their risk assessment but may find it helpful to do so. Employers should share risk assessments with staff and those with over 50 workers should publish the results on their website and others are encouraged to do so.
 
Staying at home
The UK Government guidance is divided into two sections depending on whether a COVID-19 test has been taken.
 
  • People with COVID-19 symptoms or other respiratory illness but have not tested: Those with a high temperature or who feel unwell should stay at home and avoid contact with others until well enough to resume normal activities and they no longer have a high temperature. The wide range of symptoms is listed as part of the guidance.
  • People who take a test and who test positive for COVID-19: Employers should still ask workers, customers and visitors who test positive for COVID-19 to stay at home for at least five days, avoiding contact with others, especially the vulnerable. Following a positive test people should avoid the clinically vulnerable for at least 10 days.
People who test positive should not attend the workplace (although there is no legal obligation for employees to tell employers they have COVID-19). If workers are ill and can’t work from home, they may be entitled to SSP.

Employers should talk to employees with COVID-19 symptoms about working from home if they can. If they are unable to work from home the government advises employers to discuss other options available. These options presumably include paid leave, contractual sick pay or SSP if the employees are ill.

Close contacts and children
Those with symptoms or who tested positive should avoid close contact with people with a weakened immune system, wear face-coverings and avoid crowded places and public transport.
 
Children with COVID-19 cannot go to school therefore employees may need to stay at home to look after them. Information on options is covered in the absence management FAQs.
 
Workplace outbreaks
There is no requirement to report workplace outbreaks of respiratory infections to the local authority. However, if there are high levels of respiratory infection in the workplace the UK Government says actions detailed in the advice (for example ventilation) will help to reduce the spread, and should be applied more rigorously.
 
Adequate ventilation
The UK Government continues to place significant emphasis on ventilation, also referring to the advice on air conditioning and ventilation on the HSE website. The UK Government also encourages use of outside space where practical.
 
Fresh air helps to dilute the virus in closed spaces. To reduce the risk of the virus spreading adequate ventilation through doors, windows, fans and air ducts can help. Air conditioning systems should draw in fresh air and not recirculate air. 
 
Employers with air-conditioned buildings or sealed window units could have the system checked and monitored, measuring air flow and fresh air. Most air conditioning systems do not need adjustment if they draw in a supply of fresh air. CO2 monitors can be used to indicate how well-ventilated workplaces are. HSE information suggests that CO2 monitors have limitations and test results can be misleading and are time-limited to the time of the test.
 
As well as good ventilation, limiting the number of face-to-face contacts and reducing the number of people in an area is advised. Having designated space for different teams, and methods such partnering and cohorting so each person works with the same consistent group are still recommended.

Some employers may be able to reduce occupancy levels, for example through hybrid working, or adopt social distancing to help ventilation issues.
 
Cleaning
Cleaning tips include reviewing cleaning procedures and providing hand sanitiser as well as frequent cleaning of work areas, objects and surfaces and equipment between uses including door handles and keyboards. Using usual cleaning products is fine but there is special guidance on cleaning after a confirmed case of the virus.
 
Hand-washing with hot soapy water for 20 seconds as advised at the start of the pandemic also forms part of the most recent advice.
 
Extra non-recycling bins may be needed to dispose of single use face coverings and PPE. Employers should continue to use signs and posters to remind employees about hand washing techniques and hygiene standards. Guidance on signage also suggests continuing to remind employees to maintain overall hygiene standards and wear face coverings in crowded and enclosed settings.

Face coverings
Employers should encourage the use of face coverings by workers or customers in enclosed and crowded spaces.
 
Although there is no longer a legal requirement to wear face coverings, the Government advises they should still be worn in crowded and enclosed spaces, especially where people encounter others they do not usually meet and when rates of transmission are high. 
 
The guidance says people who test positive should stay at home for at least five days, but if they but must go out, they should wear a well-fitting face covering or a surgical face mask and stay 2m (6ft) away from anyone outside their household.

Employers in sectors where free testing is not available are not required to provide testing but may choose to do so, to reduce length of absences and manage risk to other staff. Employers need to review their policy on testing. Matters to bear in mind include the updated UK Government guidance for People with symptoms of a respiratory infection including COVID-19 and the following points.

Pre-existing duties

Employers must comply with their fundamental pre-existing duties to the workforce including statutory, common law and contractual duties to take reasonable care for employees’ safety and provide a reasonably suitable and safe working environment. If there are vulnerable staff testing should at least be considered.

Justification

The need for testing will depend on the sector, workforce, and risk assessment. Employers who decide testing is appropriate should be able to justify this to staff from a health and safety and data protection duties standpoint.

Policy on payment

Employers who require employees to take COVID-19 tests before they enter the workplace will have to decide whether to require employees to pay for such tests privately, or to privately fund COVID-19 tests as part of their health and safety measures. 

Testing could be used whilst rates are high but then be phased out gradually. Testing does not replace other workplace measures including ventilation, sufficient cleaning and hygiene.

Employees' concerns about safe public transport should be taken into account in the planning and management of any safe workplace.

Employers can consider measures such as:

  • Staggering rotas arrival and departure times to reduce crowding
  • Providing additional parking/bike racks
  • Continuing home working on a full or hybrid basis provided that some or all of an employee’s work can be performed remotely
  • Altering work duties by agreement to accommodate those who are anxious to avoid crowded public transport.
Those who need to use public transport should follow transport operators and UK Government guidance. Face coverings are no longer legally required in most public spaces although they are still recommended by the UK Government in some situations, including for those who are at high risk and those have tested positive or with symptoms who still must go out.

For employees who continue to be reluctant to come into work, from a legal standpoint, on the one hand, under the Employment Rights Act 1996 employees can claim that they have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if the employee reasonably believes there was a serious and imminent danger which justifies their refusal to attend the workplace. On the other hand, in all employment contracts there is an implied term that employees must follow their employer’s lawful and reasonable instructions. Employees could therefore face disciplinary action if their continued refusal to attend work is unreasonable. However, avoiding public transport may seem preferable to some. There is at least a risk that disciplining employees for refusal to travel may result in a health and safety detriment, unfair dismissal or discrimination claim.
 
The employer should listen to the employee’s concerns, especially if they are vulnerable or have a disability and consider their proposals and accommodate them as far as practicable. Every employee should have the opportunity to discuss any concerns about their commute and ability to arrive safely with their manager.
 
Employers should also remember that employees with some mental health issues may be anxious about travelling and if their mental condition constitutes a disability the employer should try and accommodate their request. This could include staggered working hours, unpaid leave or use of annual leave to achieve a phased return.

The UK Government has issued specific guidance for people whose immune system means they are at higher risk of serious illness if they become infected with COVID-19, despite vaccination.

Employers should still consider arranging for employees at higher risk to work from home if they can and if “it feels right” for the employee. 

The guidance specifically refers higher risk people to the Equality Act duties to make reasonable adjustments so employers may see more people referring to these provisions. 

For high risk staff who cannot work from home, employers are encouraged to discuss the arrangements to reduce risk considering the guidance for reducing the spread of COVID-19 and other respiratory infections in the workplace (see above).

Although pregnant woman are no more at risk of contracting COVID-19 than any other person, there may be an increased risk of becoming severely ill or having a pre-term birth if they contract COVID-19 or have underlying health difficulties. Employers should keep checking the UK government website for the latest information regarding workplace safety for pregnant employees and should consider the following points.

Vaccination
COVID-19 vaccines and boosters are strongly recommended by JCVI as the best way to protect against the risks of COVID-19 in pregnancy for both women and babies.

Risks to pregnant women
Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. Employers of pregnant women should be extra cautious and try to avoid pregnant employees taking unnecessary risks.

In some roles where it is not possible to offer home working, pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). Other potential adjustments include temporarily altering the employee's working conditions or hours of work. If the pregnant employee remains suspended until the fourth week before the expected week of childbirth or is absent from work for a pregnancy-related reason, this triggers the commencement of her maternity leave.

Risk assessments
Employers have ongoing duties under health and safety legislation and should undertake risk assessments, once any pregnant employee has let them know about the pregnancy. Pregnant women should not be required to continue working at any stage, if this is not supported by the risk assessment. Having a COVID-19 vaccine does not remove the requirement for employers to carry out risk assessments for pregnant women. There are different government guides for different industries, for example information and advice to be used as the basis for a risk assessment may be obtained from:

  • occupational health departments
  • workplace risk assessment guidance for healthcare workers and for vulnerable people working in other industries, or
  • Royal College of Obstetricians and Gynaecologists and Royal College of Midwives guidance (see the RCOG/RCM guidance on coronavirus (COVID-19) in pregnancy).
Guidelines
For women under 26 weeks pregnant (with no underlying health conditions) employers should:
  • have a workplace risk assessment with the employer and occupational health team
  • only allow the employee to continue working if the risk assessment advises it is safe to do so
  • if a significant health and safety risk is identified adjust the working conditions or hours to remove the risk
  • remove or manage any other risks
  • if risks can’t be manged offer suitable alternative work or working arrangements (including working from home) or suspend on normal pay.
In healthcare settings work may entail specific higher risks of exposure to the virus (see the Public Health England Guidance on Infection Prevention and Control). Employers should adopt appropriate risk mitigation after the assessment.
 
Pregnant women who are 26 weeks pregnant or more (or with underlying health conditions) should be more cautious as they may be at a greater risk of severe illness from coronavirus. Pregnant staff should continue working only if the risk assessment advises it is safe to do so after suitable control measures have been put in place. Employers should:
  • involve pregnant staff in the risk assessment process and be satisfied that their continued working does not put them or their baby at risk
  • implement appropriate risk mitigations in line with recommendations from the workplace risk assessment
  • ensure the controls identified by a risk assessment for example adequate ventilation, good hygiene and cleaning, are applied strictly
  • advise pregnant workers who continue to come into work to consider taking lateral flow tests regularly
  • where a significant health and safety risk is identified adjust the working conditions or hours to remove the risk, where reasonably practicable
  • offer alternative work on the same terms and conditions if possible
  • consider the employee working flexibly from home even if in a different capacity
  • consider how to redeploy staff and how to maximise potential for homeworking, wherever possible.
If adjustments to the working environment or role are not possible and alternative work cannot be found, the employer may need to suspend the employee on paid leave (see HSE guidance).
 
If a pregnant employee’s colleague or someone else in the workplace has coronavirus symptoms or has been in contact with others with COVID-19 that person may consider themselves in serious and imminent risk of danger to health and safety. In such situations, there is special protection against dismissal and detrimental treatment if the pregnant women wants to leave work to protect herself.
 
This protection is under Section 44 of the Employment Rights Act 1996 and requires a reasonable belief that there was a serious and imminent risk based on the situation at the time and the steps taken and advice given about the risks.

Employers need a vaccination policy (if they do not already have one). A vaccination policy will explain the employer’s (and the UK Government’s current) standpoint on vaccination.

The UK Government advises that vaccination remains the best way to protect against severe disease and hospitalisation due to COVID infection. The policy will include the overall rationale for the vaccination policy and which staff it applies to. The policy should:

  • explain categories of exemption and address measures for other people such as pregnant women
  • state if the measures are contractual or merely policy
  • explain time off available for vaccination
  • explain vaccination is part of overall COVID-secure measures and is not a substitute for other health and safety measures
  • possibly offer incentives for employees to take up the vaccine.
Policies should mention data protection obligations regarding special category personal data on vaccination and testing status. A vaccination policy should correlate with other policies such as Health and Safety and workplace dispute resolution procedures, in case there are any disputes regarding vaccination. Employees who repeat untrue vaccination warnings could face disciplinary processes outlined in the policy. 
 
Anti-vaxers and others with religious or belief reasons are not mentioned in the legislation as being exempt from having vaccines. Case law is starting to emerge about Equality Act claims.

Ultimately employers can choose to attempt a mandatory COVID-19 vaccination policy, but before doing so they should carefully consider their justifications, as this has not been fully tested in UK law. Employers should be cautious and examine if their legal duty to protect others can be achieved by other means. Employers should always consider:

  • The alternatives to mandatory vaccination: Alternatives include the preferred route of encouraging and supporting staff to be vaccinated without making it a requirement. Employers should also consider if other methods such as home working, social distancing, regular testing, and good ventilation could be a feasible alternative for those who refuse vaccination. 
  • The risks of implementing a mandatory policy: The risks include possible discrimination claims, and unfair dismissal claims (from those with two years’ service) as well as potential issues with staff recruitment and retention. 
In some jobs, vaccination will be an essential requirement. For example, employees who must travel internationally as part of their role may need to be vaccinated to enter the country where they do business. However, a blanket policy requiring all staff to be vaccinated, carries significant risk. For example, if vaccine and booster rates in a particular workplace are high anyway, then justifying a mandatory policy may be more difficult. 
 
Mandating the vaccine
The UK Government’s reversal of mandatory coronavirus vaccination in the health and care sectors makes it harder for employers in these sectors and others to justify requiring their staff to be vaccinated. 
 
The key legal problems are the risks associated with enforcement and dismissing employees who refuse to be vaccinated. If employers do decide to make the vaccine mandatory for existing employees, the potential legal steps are:
  • Seeking agreement to a new contractual term in contracts. If employees don’t agree to the new term, then pursue disciplinary proceedings.
  • Giving an instruction to accept vaccination, with a failure to comply resulting in potential dismissal. Employers will need to show why this is a reasonable management instruction. 
  • Collectively consulting, if collective consultation obligations are triggered.
There will be some staff in all sectors who will see mandatory vaccination negatively. This may lead to potential claims, which employers who try a mandatory policy may need to budget for.
 
Other issues
Employers who are contemplating mandatory vaccination may also consider the following issues.
 
Equality impact assessments
Employers should explore whether mandatory vaccines put any protected group at a disadvantage as this increases the risk of successful claims from those in that protected group.
 
International travel
If any employees must travel for work, then the vaccine is likely to be a necessary job requirement and the employer may have a fair reason for dismissing any such employee who refuses the vaccine. The employer is more likely to have a fair reason for disciplining any such employee who fails to follow the employer’s reasonable instruction to get a vaccine required by the destination country, although whether the work could be undertaken remotely will be a relevant factor.
 
Time off for vaccination
Employers generally do not have to provide paid time off for medical appointments unless the contract provides for this, but employers should allow time off for COVID vaccinations anyway to promote good workplace relations. In practice, most employers will allow paid time off for this and other medical appointments. 
 
For employees who are potentially disabled under the Equality Act, allowing time off for vaccination could be regarded as a reasonable adjustment, especially if they are clinically vulnerable.
 
Employers should check for updates to UK Government guidance. More information is also available in our vaccination guide for employers and CIPD members can also call the employment law helpline on 03330 431 217.

How employers deal with employees who refuse vaccination will depend upon many factors including the virus rates, any new variant in circulation, the risks involved in the work they do, vulnerability of colleagues and the employee’s reasons for remaining unvaccinated. For example, employees may refuse because of concerns about potential allergies, a phobia of needles, because they are pregnant or concerned about clot risks. Government advice is that vaccination remains the best way to protect against severe disease and hospitalisation due to COVID infection. Employers should always discuss employee’s concerns and take them seriously, by listening to their reasons for refusing vaccination and encourage and reassure staff.

Whatever an employee’s reasons, employers must consider each case individually, should acknowledge that people have genuinely held concerns about the vaccine and act in accordance with the UK Government guidelines.
 
Encouraging vaccination
ACAS advise employers to encourage and support their staff to be vaccinated without making it a requirement. To meet their health and safety duties, employers should try to maintain a high vaccine uptake, especially in sectors where there is a high-risk coronavirus environment.
 
The World Health Organization also emphasises that community engagement should be at the heart of all vaccine initiatives, which applies in the workplace too. Strategies can include offering paid time off to attend vaccination appointments and paying the usual rate of pay if staff are off sick with vaccine-related side effects.
 
Employees who cannot be vaccinated for clinical reasons
Employees who refuse due to health reasons may have a legitimate reason for being unvaccinated, but it may be difficult for employers to determine when genuine medical reasons apply. The NHS COVID pass can demonstrate exempt status where a doctor says that vaccination is not appropriate or suggests deferring it on clinical grounds. The Public Health England guidance Green Book, JCVI guidance and medical advice may provide guidance. The Green Book says that specific vaccinations may be contra-indicated if, for example, there is a history of a confirmed anaphylactic reaction to a component of the vaccine, or if a person has a primary or acquired immunodeficiency. However, the exemptions do not automatically apply and in some instances, the benefit of vaccination may outweigh the risk, even in someone with a specific condition.
 
Employees with clinical reasons may be classed as having a disability under the Equality Act 2010. So not being vaccinated could be something arising from a disability and mean that less favourable treatment of unvaccinated employees would be discriminatory, unless objectively justified.
 
If staff are unable to be vaccinated due to health reasons, at the very least employers should complete individual risk assessments and take appropriate actions to mitigate risks. The employee may need to provide some medical proof as part of the risk assessment.
 
Employees who refuse the vaccine without clinical reasons
Employers can offer exceptions to their policy, daily testing, working from home or redeployment. The removal of the legal requirement for health and social care workers to be vaccinated means the government has endorsed vaccination encouragement rather than mandating it.
 
It is unrealistic in many workplaces to be able to adapt the employee’s work responsibilities or role to enable them to work remotely or in a safer working environment. However, it seems safest to consider any other options before attempting to dismiss or offering a departure package. 

Communication and consultation
Involving employees and providing a full explanation of the safety and efficacy of vaccination gives the best protection. Employers may wish to explain their duties under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. In addition, COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). There is information about vaccine safety on the NHS and World Health Organisation websites.
 
Incentives
Offering incentives to encourage vaccine take-up is not a common UK approach. Employers thinking of taking this approach may consider vouchers, extra pay or time off after the vaccination appointment. If incentives are offered, employers should not discriminate against employees with protected characteristics (eg age, disability or belief) who have reasons for not having the vaccination. Employers may be able to justify offering incentives only to those who have been vaccinated as a proportionate means of meeting legitimate health and safety aims.

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