The engineering and construction industries face unchartered waters as they begin to create the new normal of site work, says Henry Clinton-Davis, a partner at law firm Arnold & Porter.
Last week in Prime Minister’s questions, the leader of the opposition raised a question from the partner of a construction industry worker who had been asked to return to work, but was unable to do so because they had no childcare. Boris Johnson’s response, that employers must be understanding, highlighted the fact that the engineering and construction industries face unchartered waters as they begin to create the new normal of site work.
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How do you deal with an employee who refuses or is unable to return to work, because they’re looking after a vulnerable person, because they’re unable to get childcare or simply because they’re too scared of Covid-19? And how do you make sure that sites, laboratories and manufacturing plants are truly safe for both employees and contract workers and that whistleblowers don’t quickly emerge claiming they’re at risk?
Government guidance has highlighted many key issues including staggered shifts, equipment rotation and side working. However some of it raises alarm bells, particularly the advice not to encourage the precautionary use of extra PPE even if responding to a suspected case of Covid-19. Adding to the confusion is the fact that some, particularly US-based companies are going much further than the guidance in implementing temperature testing for workers.
In this insecure environment it’s crucial for management to take a step back and undertake a comprehensive risk assessment. That can be easier said than done when there are a raft of issues to be addressed every day without much time to prioritise. However, risk assessment is vital not only to keep everybody safe, but because a clear identification of the particular risks in your company and a plan to deal with them will enable to you to get buy-in from workers and help them feel comfortable returning to work.
When dealing with fearful workers, good communication is the key. Workers should meet with managers to discuss their fears, help them re-adjust to coming back to work and be made aware of the availability of any assistance programs. If an employee is within the extremely vulnerable or clinically vulnerable categories, they should not be asked to return to work.
The position where an employee is caring for someone who is vulnerable is less clear cut. Working from home is often not an option is this industry. If you have introduced prudent health and safety measures and complied with government and Public Health England guidance, you are probably within your rights in requiring such employees to show up for work. There are, however, alternatives. They include the furlough scheme, granting four weeks’ unpaid parental leave, granting unpaid dependants leave (though this will probably only cover the time needed to make alternative care arrangements), or the employee taking some annual leave.
If an employee is genuinely too scared to attend work, you will need to evaluate whether they are suffering from any kind of mental condition that might render them a disabled worker. If that turns out to be the case, you’ll need to consider reasonable adjustments such as assistance with travel to work to avoid public transport. In other cases, you can probably insist on the employee coming to work (again, if you have suitable health and safety measures in place) unless some of the alternatives set out above are feasible. If the employee refuses then simply stopping pay is probably an option, but one of last resort, as the employee has demonstrated that they not willing to carry out their duties.
Temperature testing at entrances to site and places of work, while not required under current guidance, can provide a useful level of reassurance to employees that they’re not being asked to work alongside colleagues who may be displaying COVID symptoms. Asking everyone, including visitors, to answer a health questionnaire before coming on a site is also helpful. While you can’t force people to have their temperature taken or to answer health questions, you can make this a condition of entering a particular place of work. But be aware that you will end up capturing and processing people’s health data. If you wish to temperature test, you will need appropriate privacy notices in place at the point of entry, and a data privacy impact assessment should be carried out as part of your company’s risk assessment.
Henry Clinton-Davis is a partner at law firm Arnold & Porter
One of the pointless tests, does no harm in itself (other than making people complacent), but it really is pointless in that it doesn’t pick up those who are asymptomatic (for temperature) , and they are likely to have been infecting others well before the raised temperature is picked up.
Unless you are in a vulnerable group the risk is very small, its those vulnerable groups that social distancing etc., is trying to protect by reducing the R number..
Check section 44 of the health and safety at work act.
On top of this lot, add on the employer’s cashflow requirements such as paying the employee’s PAYE & NI, Maternity pay, as well as the employer’s NI, VAT, Business rates, Corporation tax, and who will ever bother to be an employer?
When the lockdown lifts, it will be obvious that the Government has priced and regulated the average Brit out of work altogether. Best use self-employed subcontractors, and source the actual stuff from offshore.
Not in to play this down, but employees and employers do need to act not only responsible, but reasonable too.
It is not in an employers interest to alienate its work force with draconian attitudes and on the same account if an employee were to contract a communicable decease live Covid 19 or similar, then its whole workforce could be in jeopardy.
Similarly the workforce needs to understand the risks involved in a return to work. So if we look at the official figures of the working age population we get the following.
60-69 years old 3.6%
50-59 years old 1.3%
40-49 years old 0.4%
30-39 years old 0.2%
20-29 years old 0.2%
10-19 years old 0.2%
If we take this into context with this for 2019 “Some 18 per cent of workplace deaths this year took place in the construction industry, up from 13 per cent in 2018 and 2017.”
You probably have more chance to die of a workplace related accident.
I can understand those that through no fault of their own, both with the help they normally receive not being available and due to over heightened fears of imminent death, which employers, if lenient and understanding can overcome. It is the responsibility of all to help each other.
Wish I could edit, the figures are for deaths due to Covid 19
Its an interesting question as there are always disparities and there will be companies and industries which can work safely and correctly, and those who cannot, there will always be ethical companies working with employees and totally unethical companies who don’t care about their employees, just profits at any price.
Here is the dilemma as Government advice is generic and sparse and certainly lacking in detail which leads to the conclusion that it is down to the employers to make decisions about workplace safety and implement them to suit their industry and working conditions.