As the Government prepares to publish their new working safely guidance for employers, they must consider the human cost to workers and their families if they return to an unsafe workplace, and ensure employers are not left vulnerable to legal action. 

The Government’s draft employer guidance fails to underline that in addition to following the guidance employers must still meet their existing health and safety duties and respect individuals’ employment rights as people come back to the workplace. As drafted, an employer could be excused from believing that compliance with the guidance will ensure their legal responsibilities are met. 

To ensure workers’ fundamental rights are properly protected and employers are not left vulnerable to legal action government guidance should have more clarity on:  

• Health and safety - under UK health and safety law, employers have a duty to safeguard their employees’ health and safety at work, as far as is reasonably possible. The measures that employers should take under this duty, such as risk assessments to assess and control the threat posed by exposure to COVID-19, are not adequately communicated in the draft guidance. The role of the Health and Safety Executive (HSE) in potentially taking enforcement action against employers that fail to conduct adequate risk assessment or manage risk to the workforce should also be given more emphasis. 
• Mental health - the risks to people’s health from this pandemic are psychological as well as physical, and employers’ duty of care includes protecting people’s mental health. The risks are manifold, including fear and anxiety about infection, continued social isolation, and even illness or bereavement. Many will have been faced with new and challenging work demands that could cause stress. There needs to be much greater focus on the measures employers need to take to support people’s psychological well-being at this challenging time.  
• Diversity and inclusion - employers need to be very mindful of their obligations under equalities law, and ensure their practices are non-discriminatory. The pandemic is having an unequal impact across the workforce in many ways with different employee groups and individuals being affected in different ways, according to personal characteristics such as age, gender, ethnicity, and health and disability. The need for inclusion in these challenging times goes far beyond the law, and employers need to take every individual’s needs and circumstances into account in fostering a supportive and caring employment relationship.    

No workplace should re-open unless employers and their workforce are satisfied that an appropriate risk assessment has taken place and actions to address concerns and the minimise risk of infection have been taken. 

To support official government guidance, and to ensure that businesses are making decisions that are relevant for their specific workplace and workforce needs, the CIPD has set out five guiding principles for businesses planning the return to the workplace: 

1. Know your business: There is no ‘one size fits all’ approach – businesses will need to build on government guidance with a response that is specific to their sector, size, business need, environment and people. 
2. Put people-first: Employers must put their people’s health and well-being first, protecting them from risk of infection at work and reducing their risk of exposure when travelling to and from work. Employees need assurance they will be working in a safe and supportive environment that supports physical and mental well-being, given the risk of Coronavirus is ongoing.  
3. Be Flexible: Businesses will need to adjust working practices to protect employees’ safety and mental well-being. This will mean keeping people working from home where possible then phasing people back into the workplace gradually, staggering working hours and when people are travelling to work. Businesses may also need to reconfigure workstations and common shared spaces to enable social distancing and effective cleaning. 
4. Be inclusive: Organisations need to balance fairness and consistency with flexibility to address individuals’ health concerns, given that people will have experienced the crisis in different ways. Line managers will need to be supported to help people transition back into work in a way that recognises their personal challenges and concerns, and helps them feel safe. 
5. Be open: Individuals need to be confident that they can raise their concerns and needs about returning to the workplace without judgement. They need to know their concerns will be fairly considered by their line manager and employer and that they will be actively involved in decisions about coming back into work. The return to work must be a two-way conversation between an employer and individuals.