As one of the hardest hit economic sectors, fashion retailers in England have welcomed the news that they can reopen from 15 June. We explore how retailers can ensure that their staff (and customers) are protected once business is resumed.
In this guide we set out ten steps that employers can take to achieve this and to ensure they are compliant with the relevant laws. We hope that it will serve as a useful route map for fashion retail employers.
This article includes:
- Step one – Learn from others, understand health and safety responsibilities and study official guidance
- Step two – Carry out a risk assessment
- Step three – Update your health and safety policy
- Step four – Study the Government’s current guidance
- Step five – Draft a Covid-19 testing, tracing, and disease management protocol
- Step six – Keep up to date
- Step seven – Document everything!
- Step eight – Consult staff and health and safety representatives
- Step nine – Train managers and staff
- Step ten – Focus on solutions to the difficult issues with other legal ramifications
1. Step one – Learn from others, understand health and safety responsibilities and study official guidance
This is a new challenge for everyone and so we think it worthwhile investing quite a lot of time at the outset in studying, in detail, the relevant governmental and public health guidance and finding out what is going on elsewhere. No one had a precedent for this, and everyone is having to work out the correct approach from scratch applying their common sense to managing an entirely new set of risks.
Adopting a phased return so that retailers can learn from their own experience and from others may be advisable and will allow them to test whatever measures they put in place and to prepare for a full reopening. Many retailers are adopting this approach, including Next, John Lewis, and Kurt Geiger, by only opening a select few stores to begin with.
We have embedded further on in this guide links to useful sources of guidance and advice.
The key point to understand about the responsibilities of an employer in relation to the health and safety of staff is that it is not an absolute responsibility. Employers are required to take all reasonable steps to safeguard their employees’ health and safety but are not required to guarantee this.
The extent of their responsibilities is to be found in common law (case law) and in legislation. Case law requires employers to provide a safe place of work, a safe system of work, safe equipment, and safe staff.
The key pieces of legislation are as follows:
- Health and Safety at Work Act 1974: requires employers to ensure, so far as reasonably practicable, the health, safety, and welfare of their employees, and to enact a written health and safety policy as to how this is to be achieved.
- Management of Health and Safety at Work Regulations 1999: includes a requirement to carry out risk assessments
- Workplace (Health, Safety and Welfare) Regulations 1992: include requirements to provide adequate lighting, heating, ventilation etc.
- Provision and Use of Work Equipment Regulations 1998: includes requirement to ensure the safety and suitability of work equipment and to provide information, instruction, and training on the use of equipment
- Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (“RIDDOR”): includes a requirement to report to HSE the death of any person and specified injuries including Covid- 19.
2. Step two – Carry out a risk assessment
An accurate assessment of the risks facing employees in attending the workplace is the heart of the employer’s legal responsibilities. Employers now need to update their pre-existing risk assessment to take account of the new risks posed by Covid-19 to their employees and to determine the reasonable measures that need to be taken to manage these risks. There is a requirement to carry out a risk assessment irrespective of the size of the organisation.
The Health & Safety Executive suggests a five step processes to managing risks:
- Identify hazards
- Assess the risks
- Control the risks
- Record your findings
- Review the controls
Further details on each step is available here along with a risk assessment template and examples. A specific risk-assessment for shops can be found here.
3. Step three – Update your health and safety policy
This needs to be updated to set out the risks identified in the risk assessment and the measures that will be implemented to address them. As we said above, employers are not required to guarantee the safety of their employees, but they are legally required to take reasonable measures to safeguard the health and safety of their employees.
4. Step four – Study the Government’s current guidance
As to what are the reasonable steps, that should be taken, we consider it will be hard to criticise an employer who follows the Government’s guidance closely.
The added challenge for fashion retailers is that they are likely to need to be aware of three out of the seven sector-specific sets of guidance produced by the Government as they may have office workers carrying out design, publicity and marketing, finance and accounting, and staff working in factories and warehouses, as well as at their retail outlets.
Government guidance – retail outlets
Retailers are asked to consider how to protect staff and customers in store, including:
- Thinking about how many customers can reasonably follow 2m social distancing within the store and any outdoor selling areas and setting a limit on how many can enter at once. Total floorspace, and likely congestion areas, such as doorways should be focussed on.
- Providing clear guidance on social distancing and hygiene to customers on arrival into the store, for example, signage and visual aids, and making sure these are also visible in selling and non-selling areas, e.g. changing rooms.
- Providing written or spoken communication of the latest guidelines to both workers and customers inside and outside the store.
- Creating social distancing champions to demonstrate social distancing guidelines to customers, if helpful.
- Fitting rooms should be closed unless they are essential, e.g. to support key workers to buy protective clothing. If they are essential, contact between staff and customers should be limited, and the fitting rooms should be cleaned regularly.
- Items which are returned, tried on or extensively handled should be quarantined in a separate room or container for 72 hours.
The latter two points of guidance have caused significant controversy already, with many retailers suggesting they will severely hamper trade which is so badly needed in this sector. Given the Government’s “watch and learn” approach to policy formation, it may revise its guidance depending on the experience of retailers once they come to applying it and so keeping up to date with changes in policy will be vital (see Step Six), as well as feeding back experiences to the appropriate bodies, for example the British Retail Consortium and the Confederation of British Industry (“CBI”).
British Retail Consortium Guidance – retail outlets
The British Retail Consortium, in conjunction with the Union of Shop, Distributive and Allied Workers (‘Usdaw’), has also produced guidance on social distancing in non-food retail stores. This pre-dates the Government’s sector-specific guidance, and appears to have been largely implemented by the Government, but includes further practical suggestions as to how staff and customers might be protected in retail environments, including:
- Staggering shift start, end and break times.
- Encouraging regular handwashing breaks.
- Erecting physical barriers at till points using ‘flexiplastic’ and spacing tills 2m apart.
- Encouraging cashless purchases.
- Considering restocking/replenishing rails outside of store opening hours in order to limit congestion and customer-contact.
Government guidance – distribution
Employers should also think about protecting staff involved with inbound and outbound deliveries to and from stores and distribution centres. The Government’s guidance includes:
- Amending pick-up and drop-off policies and changing signage and markings to allow for social distancing.
- Considering reducing the frequency of deliveries, e.g. ordering larger quantities less often.
- Where possible and safe, having single workers load or unload vehicles.
Government guidance – factories and warehouses
The Government’s guidance to factories, plants and warehouses can be found here.
Fashion retail businesses often rely heavily on their warehouse and distribution centre staff to get the stock they need to the stores or out directly to customers via online deliveries. The specific considerations suggested by the Government in relation to staff operating in these environments, and in the fashion sector, are:
- Splitting staff into teams or shift groups, fixing these teams or shift groups so that, where contact is unavoidable, this happens between the same people.
- Identifying areas where people have to directly pass things to each other, for example, job information, samples, materials, and find ways to remove direct contact, such as through the use of drop-off points or transfer zones.
- Using floor paint or tape to mark out areas for workers to keep 2m apart.
- Reviewing flows of workers around site, reducing that flow where possible and creating safely-distanced flows where required.
The Government’s guidance on office workers can be found here. Some of the key points we have taken away from the Government’s current guidance are:
1. Phase employees back into the workplace.
2. Consider opening the workplace for those roles which cannot be performed remotely, and which are critical such as safe facility management, regulatory requirements, or operational continuity.
3. Plan for the minimum number of people in the workplace (this may involve rotation of staff where possible).
4. Those who are advised to self-isolate should stay at home, whether they have Covid-19 symptoms or because other members of their household have symptoms.
5. Protect workers who are clinically vulnerable (consider alternative roles where possible). Those who are shielding or are in the clinically vulnerable category should be provided with separate explanations as to what will be done to protect them, including working from home if necessary or carrying out tasks where social distancing can be followed.
6. Monitor the wellbeing of staff at home and in the office and, in so far as possible, provide support to aid their mental health and well-being.
7. Treat everyone fairly in the workplace and be mindful of the different needs of different groups of workers or individuals.
8. Display the Covid-19 secure notice in the workplace.
9. Increase frequency of handwashing and surface cleaning and clean the office before re-opening.
10. Ensure, as far as reasonably possible, that employees can maintain two metre distance from others who are not in the same household.
The outcome of this process is likely to entail increased expenditure and reduced revenue for retailers for which they will need to budget. Adopting a phased or test-based return should assist retailers to identify issues and find ways to manage their budgets accordingly, before rolling out measures to all stores.
5. Step five – Draft a Covid-19 testing, tracing, and disease management protocol
We recommend that employers draft a protocol for managing an outbreak of the disease in the workplace and their approach to testing and contact tracing. The protocol should deal with issues such as what to do in the event someone develops symptoms whilst in the office and what this means for those employees who work alongside the relevant individual. Clearly the best approach will be to send these individuals home and soon as possible and encourage them to get a test and self-isolate for 14 days if they may be infected.
The Government has published guidance on testing and how testing kits work (see here) which is directed at the public, professional users and industry makers and manufacturers. This is a fast-evolving area and so this protocol will require regular updating.
Public Health England has also approved an antibody test manufactured by Roche as a reliable test as to the presence of antibodies indicating that someone has at some stage been infected with Covid-19. This is potentially very useful to employers as it may serve to indicate which employees are immune from Covid-19. However, our understanding is that as of now, it is not known for certain whether everyone with antibodies is immune.
The Government’s test and tracing system is now up and running (albeit without the smart phone app which is not ready) and so employers should become fully familiar with this and take full account of it in drafting their protocol. They need to be ready to send employees home immediately if they are notified that they have been in contact with someone with Covid-19 or the symptoms of this illness.
Employers will also need to consider putting together a disease management protocol (and training their staff to follow it) relating to customers who may fall unwell or display symptoms whilst at the store.
6. Step six – Keep up to date
Ensure that an appropriately skilled member of staff is charged with monitoring the Government’s, Public Health England’s and the WHO’s guidance and ensuring that risk assessments, health and safety policies and Covid-19 protocols are regularly updated and that all of the measures being adopted to manage Covid-19 risks are compliant with the official guidance in force at the time.
7. Step seven – Document everything!
Employers are strongly advised to invest the time and effort in producing and updating (as necessary) risk assessments, health and safety policies and testing, tracing and disease management protocols and to set out in writing their reasons for adopting a specific policy or measure by reference to the Government’s guidance in force (or other reliable guidance) at the time.
Employers should keep every version of their key documents and a record of the dates on which they were in force. It will also be helpful to keep a hard copy or PDF record of the Government’s guidance relied upon and the dates on which it was in force. If there are good reasons for departing from the guidance, record these and the basis for your interpretation of aspects of the guidance. This will enable you to demonstrate after the event, if needed, that all reasonable steps were taken based on best advice available at the time.
8. Step eight – Consult staff and health and safety representatives
Consult and discuss working arrangements with employees. Employers should not underestimate the importance of keeping an open dialogue with their employees about the steps they are taking to protect the workforce against the virus. The Health & Safety Executive has produced this guide to help employers with these discussions.
Consult with health and safety employee representatives. The Health & Safety Executive has also published this helpful short guide to working safely during the coronavirus outbreak.
Many employers are preparing questionnaires to send to staff asking about their individual circumstances as a starting point for consulting with them about their return to the workplace.
9. Step nine – Train managers and staff
Make sure all workers understand Covid-19 health and safety protocols and procedures by providing clear and consistent guidance and training materials. Store managers especially will require rigorous training with respect to the measure to be adopted to protect staff as well as customers.
Be mindful of the two metre social distancing rules if trying to deliver such training to the entire workforce. Online training might be the way to go.
10. Step ten – Focus on solutions to the difficult issues with other legal ramifications
Our list of these includes the following:
Staggered working hours
To relieve the pressure on public transport, particularly during rush hours, employers may wish to consider staggering working hours. Employers need to think carefully about how they implement such measures as a change to an employee’s working hours may be in breach of their employment contract. In addition, changes to working hours, depending on how they are implemented, may unfairly disadvantage certain groups, such as women, who often take on the role as carers for children or family members.
Arrangements for travelling to work
Public transport creates a problem in terms of spreading the virus, but it is also a key enabler in terms of people returning to work. The Government is keen to avoid overcrowding on trains and buses and has asked that those who can get to work without using public transport should do so. Employers may want to encourage employees, where possible, to drive or walk into the workplace or may consider promoting or implementing incentives such as the cycle to work scheme, which allows employees to benefit through a salary sacrifice arrangement to tax and National Insurance breaks (further guidance for employers on the cycle to work scheme is available here). Consultation with individual employees about how to travel to work will be important.
Younger workers returning first
This is not a measure recommended in the Government’s guidance, but many employers are considering whether younger employees should return first. Employers need to be mindful that some of the younger workforce may still be vulnerable to the virus because of underlying health conditions. Employers need to ensure they have considered individual circumstances before implementing a blanket age-based policy. A measure such as this is discriminatory treatment on the grounds of age, but it may be capable of objective justification by reference to medical data. However, we advise great caution here as the medical data is constantly changing. Absent guidance from the Government on dealing with at risk age categories, employers will need to be careful where they draw the line in terms of the age groups and be clear as to the medical evidence on which they place reliance.
PPE equipment & social distancing
With PPE still in limited supply, employers will need to think carefully about how much PPE they will be able to readily access and how much PPE will be required as their workers return to the workplace. The Government’s guidance notes that workplaces should not be encouraging the precautionary use of extra PPE and that PPE can be extremely limited in providing additional protection. Despite this, if following a risk assessment, it is shown that PPE is required for the employee to work safely then employers are required to provide PPE free of charge to all workers who need it.
Employers should strongly encourage two metre social distancing at all times in the workplace. Where this cannot be managed, face covering is highly encouraged to minimise the risk of transmission, but it should be acknowledged that this may only have a marginal effect.
Rotating staff with some at home and some in the workplace
One approach an employer may wish to consider is the rotation of employees between the workplace and home. This not only limits the number of employees in stores, warehouses or in the office at any one time but also means a smaller proportion of the workforce are exposed to the virus, either in the workplace or during their commute. This might be a good way of easing the workforce back to their respective workplaces.
If you have any questions about these issues in relation to your own organisation and wish to discuss instructing us to help you, please contact a member of the Fox Williams team directly.
This guide was prepared by Jane Mann, partner, Angharad Birch, associate, Ed Livingstone, associate, Jessica Ambrose, associate, and Anjali Aravindhan, trainee solicitor.