With the roadmap to ease coronavirus restrictions now in place, the Health & Safety Executive continues to come under pressure to increase its risk classification of COVID-19, which would make it easier to serve prohibition notices for businesses that fail to meet their obligations. Peter Hampson, head of regulatory at law firm Gordons (www.gordonsllp.com), examines what this could mean for employers in hospitality.
The roadmap is now in place and hospitality businesses are preparing for phased reopenings in April, May and June. Caterers and hoteliers – like those businesses in many other industries – continue to cross their fingers that the data will keep supporting the roadmap so that they can reopen to customers in line with the roadmap. In the meantime, there is plenty of work going on behind closed doors to make sure they are ready.
One of the biggest challenges to hospitality businesses throughout the pandemic, including through the periods of stop/start reopenings in 2020, has been in getting the right hygiene measures in place.The Government, Health & Safety Executive (HSE) and Food Standards Agency (FSA) have all published guidance to support businesses in the last 12 months, with support also on hand from local authorities. Increased hygiene and cleaning processes have been a pre-requisite, together with social distancing, mask wearing, signage and other in-venue measures to help reduce the risk of transmission.
THE IMPACT OF NON-COMPLIANCE
For some months now, businesses have faced the threat of improvement and prohibition notices if they fail to meet their obligations. Notably, the HSE has repeatedly warned of spot checks across all industries.
In Parliament in February, Mims Davies, the Parliamentary Under-Secretary of State for Work and Pensions, said that the HSE has carried out over 110,000 COVID-19 spot checks and responded to over 18,000 concerns since the start of the pandemic. Its evidence, Mims Davies said, shows that more than 90% of the businesses checked have the right precautions in place or are willing to make necessary changes promptly and without the need for enforcement notices.
What these statistics fail to highlight is that the HSE had issued just two prohibition notices for breaches of workplace COVID-secure standards up to 19th February 2021, both in the oil and gas industry.
There has, of course, been other action taken. Up to the same date, there had been 6,429 COVID-19 related cases resulting in an outcome of verbal advice (2,030 in service sectors), 1,422 COVID-19 related interventions resulting in an outcome of written correspondence (367 in service sectors) and 212 improvement notices served (53 in service sectors).
Part of the reason for the lack of prohibition notices and prosecutions has been the HSE’s classification of COVID-19 as a “significant” risk, rather than “serious” within its Enforcement Management Model (EMM), which makes its far harder to justify such actions.
With retail and hospitality preparing to reopen, there have been calls to reclassify that risk and put greater pressure on operators to meet their obligations.Trade unions and the Labour Party in particular have been calling for change, concerned about employee welfare after various reports of employees being forced into work against their will.The Observer reports that there have been 3,500 outbreaks in UK workplaces since the start of the pandemic.
If that happens, there is every reason to expect that more improvement and prohibition notices will be served. However, while businesses should be aware of any change, there is no reason why they should be concerned if they are implementing the correct procedures.
My advice now is the same as it has been throughout the pandemic. Irrespective of classification in the HSE’s EMM, strong hygiene procedures and best practice measures will enable any business to reopen safely and lessen chances of the spread. It will also prevent any enforcement action by the HSE or local authority.
It is important for any employer to recognise that things are not like they were in 2019. All employers have obligations under the Health & Safety Act 1974 to ensure the safety of their own employees and non-employees.Whilst it is true that this requires more effort now than it did pre-pandemic, it certainly doesn’t mean it is not achievable.
Use the guidance available on the HSE and Gov.uk websites, undertake the necessary risk assessments and put the correct measures in place. If you follow the correct procedures, you can be confident of compliance if and when the HSE undertakes a spot check – however it classifies risk.