Business owners that do not follow government rules to protect staff and customers as the lockdown is eased could find themselves in prison for breaking health and safety laws, the Business Secretary Alok Sharma has said.

Sharma told BBC Radio 4’s Today programme:

“There is a legal duty requirement for businesses to keep their workers safe, for those who interact in those businesses to keep them safe. If people are ignoring the rules and they are not keeping a workplace safe, then there are clearly measures that can be followed and it is possible for there to be enforcement notices, there are going to be checks that are carried out, spot checks by the Health and Safety Executive, which they are already doing.

“And in the case where someone is not following an enforcement order and not fixing things in a workplace, then, for the most serious offences, people can go to prison for up to two years. These are real powers and real teeth that are in place.”

The term ‘COVID-secure workplace’ has been used to describe those workplaces that are fit for a safe return to work, but its definition remains unclear, as does the understanding of how workplaces will be regulated during the pandemic.

Says Kate Gardner, health and safety consultant with International Workplace:

“Making a workplace COVID-secure is a shared responsibility for everyone, including building owners, building managers and occupiers. For many within the FM sector, making workplaces safe started with reviewing how many staff worked in the space before the lockdown was implemented and then working out how many staff can now occupy the space and continue to observe social distancing guidelines. Key considerations here are around minimising contact within workstations, breakout areas, meeting rooms and kitchen or canteen spaces.

“While it’s very possible to implement physical changes such as screens, floor markings, one way systems, information signs and increased cleaning regimes, it remains everyone’s responsibility to follow the government guidance – wash hands regularly, don’t touch your face, keep socially distanced and wear a face covering when using public transport or in public spaces where social distancing is not possible.”

Says Dewi Ap-Thomas, partner and head of regulatory at national law firm Weightmans LLP:

“Government guidance requires businesses to do ‘all that is reasonably practicable’ in preparing their workspaces for staff – so anything that can be done, should be done – within reason. The law does not require businesses to close or implement measures that would be financially devastating and compromise the viability of the business itself.”

Kate adds:

“‘Reasonable’ will involve implementing both physical and behavioural controls and includes ensuring that everyone understands why it’s important to follow the various protocols that the ‘new normal’ will introduce. Clear, unambiguous information, consistently applied, will be key to ensuring our workplaces are safe spaces to work. Taking appropriate and proportionate measures to ensure buildings can be used in a safe and secure way is vital. Communication and cooperation between everyone is essential to make sure that the right programme of control measures are implemented at the right time. People may well need to be reminded about the new protocols in workplaces, so we need to be mindful of how we coach people to make these new ways of working automatic habits.”

Adds Ap-Thomas:

“The nature of COVID-19 is that we can never guarantee a risk-free environment; however, we should all be aiming for as low a risk as possible. Guidance has changed repeatedly as we gather more information about COVID-19 and how it is spread, and as this changes, so should your risk assessments. Regular, date-stamped reviews are crucial to ensure you are as compliant as you possibly can be.

“It is also important to remember that the HSE does not need to prove the presence of COVID-19 in the workplace – the law requires consideration on risk of harm, rather than actual harm. Even if a business records no cases of infection, if it is not seen to implement measures to honour greater hygiene and social distancing, it may be in breach of the law and enforcement action could be taken against them.”

Ap-Thomas continues:

“Viruses have never been recognised as a legal risk – they are considered a hazard in the workplace, rather than a workplace hazard.

“Despite the fact that viruses have been largely excluded from workplace risk assessments in the past, the law – particularly the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 – is flexible enough to capture COVID-19 and the business community’s response to it. Therefore, all employers and duty holders should remember that they have a legal obligation to reduce risk, or they may face the consequences, both financially and reputationally.

“As we learn more about COVID-19, the expectation to do more will increase, and the sympathy for those who haven’t yet complied will decline. Look to other workplaces for examples of best practice, speak to your employees and their workplace representatives, and seek legal advice to ensure we can all successfully recover from the pandemic as quickly and as safely as possible.”