Social distancing law updated in Wales – the impact on businesses

A new law came into force on 7 April 2020, requiring all employers in Wales to take additional steps to protect the health of their employees whilst they are at work during the COVID-19 crisis period.

The Law

The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (“the regulations”) which were introduced in 26 March 2020, required public facing businesses and services allowed to remain open (including food retailers, pharmacies and petrol stations), to take all reasonable measures to ensure that a distance of at least two metres is maintained between any person on the premises (except between members of the same household, or a carer and the person they are caring for).

Restrictions on places of work

With effect from 7 April 2020, regulations have been amended to introduce ‘general restrictions on places of work’. Specifically regulation 6A now requires that, in all other workplaces that remain open (including any building or structure, or any land), employers who are responsible for the work being carried out during the emergency period must take ‘all reasonable measures’ to ensure that a distance of at least two metres is maintained between any person on the premises and waiting to enter the premises (except between members of the same household, or a carer and the person they are caring for).

Additionally, regulation 7A requires employers to have regard to:

• Guidance issued by the Welsh Ministers which will include: ‘taking all reasonable measures to maintain physical distancing in the workplace’ as published on 7 April 2020; and
• Any other guidance, codes of practice or other documents published by other bodies (such as trade unions and industry bodies). This will include the Guidance published by the UK Government on 7 April 2020: ‘Social distancing in the workplace during coronavirus (COVID-19): sector guidance’ about reasonable measures to ensure that a distance of two metres is maintained between persons, when implementing safety measures within workplaces.

Given this requirement, employers are advised to expressly reference such guidance in their task and site specific risk assessments and safe systems of work.

Welsh Government Guidance: ‘Taking all reasonable measures to maintain physical distancing in the workplace’

This guidance expressly provides that:

“The Welsh Government wishes to make clear that while the requirement to take all reasonable measures to maintain a distance is an objective test that is intended to be applied consistently, it is neither an absolute rule that has to be applied all of the time in all circumstances, nor is it a test that will apply in the same way in all circumstances.

This is not about whether the businesses subject to this requirement work, it is about the way they work. It is about taking proportionate action where it is practicable to do so.”

It also specifies that the duty to ensure compliance with these requirements:

“falls on the person responsible for the work being undertaken in the workplace; that is the person responsible for management control.”

This guidance does not define precisely what constitutes a ‘reasonable measure’. It states “there is no hard and fast rule” but explains that:

“The test of whether a measure is reasonable is an objective one. It will be for a business to justify the reasonable measures that they have adopted and to demonstrate how they considered that these are proportionate and minimise the risk faced by workers who have to continue to attend work in their workplace.

“The nature of measures that are reasonable will be specific to the individual workplace, will reflect the physical environment and the nature of the business being conducted”.

Examples of reasonable measures

Further, this guidance sets out a non-exhaustive list of examples of reasonable measures which may be relevant including: reducing the number of people working on the premises at any one time; alternating tasks undertaken and staggering shifts.

It specifically states that the principle regulations, as amended, “do not require all employers to enforce 2 metres distance between all workers all of the time” and acknowledges “there will be circumstances in which it is not possible to take reasonable measures e.g. tasks that require two or more people to undertake them safely”, (including heavy lifting, working in confined spaces and dual working to ensure safety).

Non compliance

Employers operating workplaces in Wales and their managers/directors who chose not to comply with social distancing law and/or guidance, do so at their peril.

Under the regulations, the person responsible for the work being undertaken in the workplace is found not to be taking all reasonable measures to ensure that a distance of two metres is maintained between persons on the premises in issue, that person may be subject to a fixed penalty notice of £60 (which is doubled for a second breach) or may be charged with a criminal offence and fined.

Further, in its joint statement with the TUC and the CBI on 3 April 2020, HSE issued a clear warning to non-compliant employers across the UK:

“The health and safety of workers remains paramount. Employers are and must continue to provide workers with information about risks to their health and the actions their employers must take.

Social distancing is a key public health measure introduced by Public Health England to reduce the spread of infection. Most employers are going to great lengths to ensure social distancing wherever possible. The HSE, CBI and TUC wish to publicly support these efforts. Firms that can safely stay open and support livelihoods should not be forced to close by misunderstandings about government guidance.

But if it comes to the HSE’s attention that employers are not complying with the relevant Public Health England guidance (including enabling social distancing where it is practical to do so), HSE will consider a range of actions ranging from providing specific advice to employers through to issuing enforcement notices, including prohibition notices.”

Employers will not, of course, need to be reminded that criminal prosecutions for breaches of health and safety legislation carry unlimited fines and custodial sentences for individuals.

Comment

Employers in Wales and England are urged to undertake a suitable and sufficient risk assessment of their health and safety management arrangements to include consideration of: the issued guidance on social distancing, the specific nature of the roles of their employees and the specific nature of the working environment. Having done so, employers must implement a safe system of work within which their employees can work safely and in a manner that does not expose non employees (who are affected by the work) to risks to their health and safety.

A safe system of work will be task specific and include: appropriate arrangements for social distancing where practicable; enhanced protective measures including, where appropriate, PPE; and revised work types and patterns (in line with the evolving situation). These arrangements must be robustly enforced, monitored and reviewed throughout the emergency period.

This article has been co-written by Claire Rawle and Gemma Casey.