Newsletters Criminal Regulatory 8th Oct 2021

The Health and Safety Executive, Workplace Safety and our Return to the “Old” Normal

The Covid-19 pandemic has impacted nearly every aspect of our daily lives. We have all become accustomed to the “new normal”, including the use of face-masks, practicing social distancing and endless flows of hand-sanitiser. The workplace, and how we operate within it, has had to adapt quickly to ensure that sufficient measures are in place to ensure safe working for all. This has not been an easy task given the seismic change in working patterns throughout the pandemic.

On 19 July 2021, England moved to Step 4 of the UK government’s roadmap which involved the removal of most Covid-19 restrictions. The current transition from the “new normal” back to the “old normal” is unlikely to be plain sailing for both employers and employees as each will have their own views about what measures remain necessary to ensure safety at work.

On 31 August 2021, the Health and Safety Executive (“HSE”) published guidance on the changes related to working safely during the pandemic following the lifting of coronavirus restrictions. In addition, it provided further details of advice from public health bodies and other government departments on requirements that are not enforced by HSE.

The guidance draws a distinction between:

  1. Controls to use after most restrictions are removed and
  2. Advice from public health bodies and other government departments.

The former falls under the remit of HSE enforcement, however the latter does not.

Controls to use after most restrictions are removed:

The guidance states that employers and businesses must still control the risks and review and update their risk assessment, with the following workplace controls remaining unchanged:

  1. Adequate ventilation
  2. Sufficient cleaning
  3. Good hand hygiene

Employers and businesses must continue to consult their workforce on health and safety matters by talking to works and their representatives to help reduce risk.

The guidance also makes recommendations for reducing the risk of transmission by taking measures to limit the number of people who workers are in contact with, for example staggered working hours. It also advises that the measures identified in the risk assessment take account of public health regulations and guidance for the particular nation (England/Scotland/Wales) which the business operates in.

Advice from public health bodies and other government departments:

The HSE guidance also incorporates further public health measures which can be taken by employers in order to reduce the risk of transmission, albeit these matters are not enforced by HSE. The following measures and further detail on HSE’s role include:

  1. Vaccinations – with a link to Acas advice on getting the vaccine for work and nation specific NHS guidance.
  2. Workplace testing – whilst explaining that respective governments’ public health departments take the lead on workplace testing and HSE is not responsible for producing guidance on testing programmes.
  3. Test, tracking and tracing including for new variants – although noting that HSE does not have a role in establishing or enforcing the different testing and tracking approaches across the UK.
  4. Face coverings – with confirmation that face coverings are not classified as personal protective equipment and are therefore not covered by health and safety legislation, with a link to the relevant explanatory guidance.
  5. Mass asymptomatic testing in education settings.


It appears from the HSE’s perspective, the primary obligation upon employers in respect of keeping their workplace safe as coronavirus restrictions are lifted is to ensure that they adopt a targeted, considered and detailed risk assessment that reflects current public health regulations and guidance. The HSE also mandates that there is active engagement with employees and representatives when undertaking this important exercise. Other measures such as vaccinations, face-coverings, track and trace are also encouraged but are not subject to the HSE’s enforcement. This distinction in terms of being at risk of enforcement action may provide employers with some piece of mind when navigating these testing times.


David Whittaker QC & Sophia Dower


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