As non-essential retail and other businesses start to open up this week, the HSE continues to update its advice and guidance on returning safely to the workplace. Before re-opening any workplace (and at frequent intervals thereafter) a COVID-19 risk assessment should be undertaken to identify key risk areas (where possible transmission is highest) and what measures are required to control those risks.

Workplace controls such as social distancing, frequent cleaning, adequate ventilation and good hand hygiene, which many businesses will be acutely familiar with, remain in place and are unchanged. If testing is provided on-site, it must be carried out safely and in an appropriate setting where control measures are in place. This includes having an appropriate space for workers to wait while their test is being processed.

Steps to take now:

• Complete a COVID-19 risk assessment.
• Implement measures to reduce transmission risk.
• Follow and regularly review the government's sector-specific guidance on working safely during Coronavirus.
• If buildings were closed or had reduced occupancy during the pandemic, consider the increased risks of Legionnaires' disease and take the appropriate action.

Thorough examination and testing of equipment
The HSE has published updated advice on the thorough examination and testing of equipment as Coronavirus restrictions are eased. The HSE recognises that businesses may have found it difficult to discharge their legal obligations to thoroughly examine and test equipment during the pandemic, but notes that organising the return to periodic thorough examination and testing is a priority and will need to be planned. Dutyholders should take into account the additional backlog of work required of their competent person in response to the easing of restrictions and consider whether extra resource is required.

The HSE has confirmed that it will adopt a phased and proportionate approach to resuming proactive regulatory intervention in checking compliance with the legal requirements.

Steps to take now:

• Review the updated advice.
• Survey your assets to assess which equipment is affected.
• Prioritise formulating and implementing a plan to resume examination and testing.

Talking with your workforce
The HSE has also published updated guidance on talking to workers about returning to the workplace. While some workers may welcome a return to the physical workplace, others may feel understandably anxious and unsure of what to expect. Effective communication and open dialogue will be key. The HSE's guidance includes examples of ways that employers can help and contains a specific section on communicating information and guidance. Thought will need to be given to what information and guidance is provided (and how), how key messaging is reinforced, how updates are communicated, and how information about COVID-secure measures will be communicated to non-employees, such as customers and contractors.

A recent first instance Employment Tribunal judgment (Rodgers v. Leeds Laser Cutting Limited, 2020) provided helpful comments for employers who may be concerned about employees who are reluctant to return to the workplace. Employees with any length of service can potentially claim automatic unfair dismissal if the reason they are dismissed is because in circumstances of danger, which the employee reasonably believed to be serious and imminent, and which the employee could not reasonably be expected to avert, the employee left, proposed to leave or refused to return to the workplace.

Many employers are understandably concerned that they could be left in a "stalemate" situation with employees refusing to return to work citing fears around COVID-19. Reassuringly, the case confirmed that while conditions pertaining to COVID-19 could potentially amount to circumstances of serious and imminent danger in principle, this would not be the situation in all cases and a factual assessment should be used to examine the particular level of danger in each workplace. The judgment endorsed the principle that it would be reasonable to expect employees to avert danger by following government guidance and the measures put in place by employers following a sensible and comprehensive risk assessment – a further reason to communicate clearly with staff about the measures to be employed.

Particular workforce issues
In communicating with staff about returning to the workplace, employers will obviously need to take account of personal circumstances. Employees who suffer from disabilities covered by the Equality Act 2010 may need additional adjustments to be made.

It will be crucial for employers to reinforce the message to vaccinated employees that workplace controls are for the benefit of all, and still need to be maintained for some time yet. It will be important for the reassurance of non-vaccinated staff (which may include those who have not been able to have the vaccine for medical reasons) that any breaches of safety measures are handled quickly and appropriately, by way of disciplinary action if required.

Steps to take now:

• Review the updated guidance.
• Devise a strategy for communicating with workers and others, taking into account accessibility, individual needs, beliefs and cultures and the requirement to consult.
• Explain how workers will be supported, including those in higher-risk groups – can they work from home/are there socially distanced tasks they can undertake?
• Remind all staff of the need to employ workplace controls, even if they have been vaccinated.
• Follow the HSE's guidance on stress and mental health.

Claire Burrows is a Director in the Regulatory & Compliance Team at Walker Morris LLP.

Lucy Gordon is a Director in the Employment Team at Walker Morris LLP.