Simon Joyston-Bechal, Director at Turnstone Law, investigates how far you can push the boundaries of the COVID-19 rules and stay within criminal law.
As lockdown eases, many of you are again being pressed to get staff back to normal working from the office. Organisations can make their own decisions about how firmly to push; but decisions should be made against a backdrop of understanding where the law draws the line. In this article, Simon Joyston-Bechal explores the legal boundaries for England, in order to help organisations to stay on the right side of the criminal law.
Background
In my April 2021 legislation update webinar for Barbour EHS, I focused on current COVID-19 topics including an in-depth analysis of the rules governing when staff are allowed back to the office. From the number of listeners who followed up with comments and questions, I can see that this is an issue troubling many organisations. By popular demand, I would like to shed light on what is allowed.
By my analysis, there are two questions that need to be considered separately, albeit there are overlap issues:
The Steps Regulations create the relevant current lockdown criminal rules. They outlaw “gatherings” beyond certain numbers, subject to specific exceptions, at various Steps which come into force at various dates.
The table below summarises the key provisions for indoor gatherings at Steps 2, 3 and 4:
| Step 2 | Step 3 | Step 4 |
| From 12 April 2021. | Not before 17 May 2021. | Not before 21 June 2021 |
| No indoor gathering > 1. | No indoor gathering > 6. | No stipulated restrictions as yet. |
| Exception 3(a): Reasonably necessary for work purposes. | Exception 3(a): Reasonably necessary for work purposes. | Roadmap guidance says there will be a Government review of social distancing before Step 4. |
The upshot of this is that there are three ways in which an employer can push at the boundaries for a lawful return to the office. First, they can allow returnees whose presence can be justified because it is “reasonably necessary for work purposes”. Second, they can allow workplace attendance that isn’t a gathering. Third, they can find ways to best use the permitted numbers.
The lockdown rules have never criminalised attendance in a workplace that is “reasonably necessary for work purposes”, save for criminalising at different stages the opening of various establishments, such as shops and hospitality venues. Offices have not been on the banned list, so throughout the pandemic workers have been (and are) allowed to attend if this “reasonably necessary” exception applies.
There may be employee-based factors that trigger the exception; and in my view this could include productivity or effectiveness of working, mental health, wellbeing and even career development and training. Whilst the ‘importance’ of the work might be argued as a factor towards the reasonable necessity of attending (e.g. for an air traffic controller), there is nothing to restrict less vital attendance so long as it is reasonably necessary for the employee’s purposes (e.g. office cleaners reasonably need to attend in order to perform their work).
There may also be employer-based factors that trigger the exception, which could include productivity, profitability, teamworking, onboarding and staff development or training. The cumulative impact of 12 months’ working from home seems to me to be a potentially relevant factor – as time passes, the deficiencies of remote working might trigger the exception.
Each decision needs to be assessed, potentially for each employee or each category of employee. It may be obvious that a worker’s attendance qualifies as being “reasonably necessary” if it enhances productivity from 50% to 100%. But what if it enhances productivity from 95% to 100%? Would the answer depend upon whether the business is struggling to survive or would it be sufficient to argue that it operates in a competitive market in which 5% makes a difference?
Ultimately, for a borderline case, it could be a question for the jury to decide in all the circumstances whether a particular person’s attendance was “reasonably necessary for work purposes”. That flexibility can be embraced, rather than feared, so long as the decision was properly considered and the reasoning has been documented. Employers will be on stronger ground if they consult with staff, seek to accommodate concerns and adopt a transparent approach where possible.
The relevant Steps Regulations won’t be breached by any attendance that isn’t a “gathering”. This is the definition:
“a gathering takes place when two or more persons are present together in the same place in order –
This means that employees are not forbidden from attending the workplace if they remain in a ‘silo’ (that’s my word) without “social interaction” or “any other activity” with people beyond their silo. Attendees using this exception do not need to fall within the “reasonably necessary” exception.
Using the permitted numbers
During Step 2 (from 12 April 2021), the maximum permitted indoor gathering is one person. That means at this stage employers can allow silos of one person, forbidden from activity or social interaction with others (which is not particularly helpful), plus anyone else can attend and engage in social interaction so long as their attendance is “reasonably necessary for work purposes”.
Once Step 3 applies (not before 17 May 2021), the maximum permitted indoor gathering jumps to six. From this stage, employers can allow silos of up to six persons, forbidden from activity or social interaction with others but allowed to conduct activity and social interaction within their silo. Workplace teams could be allocated into silos and there is nothing in law to prevent an employer bringing in multiple silos, or rotating fixed silos for attendance on different days or even rotating employees into different silos on different days.
In addition to these silos up to six, anyone else can be permitted to attend outside the silo rules where their attendance is “reasonably necessary for work purposes”.
Not every employer will want to push the boundaries in this way; nonetheless by understanding the ambit of the legal restrictions, employers are entitled to make plans for lawful attendance.
We can hope that the rules will be further relaxed in Step 4 (not before 21 June 2021) and there are currently no stipulations or restrictions for that stage.
The Steps Regulations don’t deal with social distancing in the office, whether for the “reasonably necessary for work purposes” contingent or within the silo contingent. Does that mean employees within each silo or withing the class of “reasonably necessary” attendees can be allowed to ignore social distancing, akin to being in workplace “bubbles”?
My practical answer to that is “no”. The Health and Safety at Work Act 1974 (HSWA) creates a criminal offence for employers who fail to take reasonably practicable measures for health and for safety. Leaving aside for now the argument that HSWA may not apply to the potential spread of a community (rather than occupational) infection such as COVID-19 within a workplace, the Health and Safety Executive considers that social distancing for purposes of COVID-19 does fall within an employer’s HSWA responsibility.
On this basis, the general requirements of HSWA will be construed taking into account any relevant guidance; and the various pieces of Government guidance on social distancing thereby get elevated in legal status (e.g. the guidance on offices and contact centres: https://www.gov.uk/guidance/working-safely-during-coronavirus-COVID-19/offices-and-contact-centres ). It is not of itself a criminal offence to breach the guidance on social distancing, but there is a risk of prosecution under HSWA unless the employer can show that the guidance went beyond what was reasonably practicable.
Summary
To stay on the right side of the law, employers will want to follow the Steps through successive relaxation. Employees can attend the office in Step 2 (from 12 April 2021) and Step 3 (not before 17 May 2021) if attendance is “reasonably necessary for work purposes”. They can also attend in silos so long as employers are able to demonstrate that they have established and monitored clear rules preventing employees from breaching the silos and socially interacting, for example in a shared office kitchen area. The silos are restricted to one person in Step 2 but expand to a maximum of six in Step 3.
Social distancing guidelines should still be followed for all these attendees. Then, in Step 4 (not before 21 June 2021) the Government hopes to be able to relax restrictions further. In the meantime, the interplay between the criminal law and the guidance remains opaque to many. Suffice to say that I will be kept busy supporting clients to maximise their workplace opportunities, whilst staying on the right side of the criminal law and looking after health and safety.
Extracts of the session can also be heard on the latest episode of the Safety & Health Podcast, below…
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Last time out, we focussed on the latest health & safety legislation updates, particularly around returning to work and the coronavirus vaccination programme. We’ll also hear from SHP’s Most Influential Person in health & safety, Hilda Palmer, and we’ll drop in some clips from a recent roundtable, hosted by SHP, about the role of smart PPE in protecting lone workers.
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