This is one in a series of Blogs around Covid-19 issues.  We have recently prepared a Blog in relation to pregnancy and also a Video Blog discussing  returning to work.

The Government has been at pains to say in its guidance that employers aren’t required to provide PPE to employees in the workplace in the form of face masks.  They were also at pains to point out that stocks of such items need to be preserved for those in clinical settings.  Whilst politically it makes sense, it is actually legal inaccurate and employers who rely solely on such statements could be getting things significantly wrong.

The Health and Safety at Work Act of 1974 is bolstered by a set of six different Regulations that came into force in 1992, which health and safety aficionados call ‘the six pack’ to bring our law in line with European standards.  One of the six pack is the Personal Protective Equipment at Work Regulations 1992 (PPE Regulations).  

Regulation 4 of those PPE regulations states “every employer shall ensure that suitable personal protective equipment is provided to his employees who may exposed to a risk to their health and safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective”.  

Applying this to Covid-19, customer facing employees, or employees who may have to work in close proximity to their colleagues, shall be being exposed to a risk to their health and safety namely the risk of contracting Covid-19 unless the employer has taken measures to minimise this risk such as placing screens between the employees or the worker and their customer. However, what employer can say such a measure adequately controls the risks such that face coverings aren’t also necessary?

It is worth noting that where an employer does provide a face mask, the Regulations also tell us that PPE is not suitable unless:

(a) It is appropriate for the risks involved, the conditions at the place where exposure to the risk may occur and the period for which it is worn.  

(b) It takes into account ergonomic requirements and the state of health of the person or persons who may wear it.

(c) It is capable of fitting the wearer correctly, if necessary, after adjustments within the range for which it is designed.

(d) So far as practicable, it is effective to prevent or adequately control the risk or risks involved without increasing overall risk.

This means an employer having to adequately fit test face masks if they do provide them.  Indeed such masks are only of any use when they have been properly fitted.  Not every design of mask will properly fit every person. It may mean choosing masks that would be of the type used in a clinical setting rather than mere face coverings, for example, with filters and  adjustable for the comfort of those wearing them.  It also means training those wearing them in how to fit them, how to wear them, how to adjust them and the protocols when putting them on and off regarding things like the washing of hands.  Otherwise, people may well falsely believe that they are safe when they are not or the wearing of the PPE can make people complacent.

We have previously written about the ability for an employee to bring claims under Section 44 and Section 100 of the Employment Rights Act 1996 (please click here to view the Blog) – these aspects of the legislation may well be triggered if somebody wishes to wear a mask but is then not permitted by their employer to do so, or where an employer should be providing such equipment but none is provided.

We are aware that there has been some debate during the crisis about the medical efficacy of masks but today (5 June 2020), the BMA Cymru Wales has called upon Welsh Government to change their position on face coverings, saying they should be worn in areas where people can’t socially distance.  Dr David Bailey said “there still remains a considerable risk of infection, and emerging evidence has shown that if mouths and noses are covered when people are in areas where they cannot socially distance, it may help in controlling the spread of infection of Covid-19 and therefore save lives”. He did go onto say that it would be sensible if those face coverings that they were asking Welsh Government to supply were not the same as the medical grade masks reserved for frontline staff.

Refreshing Law Limited

5 June 2020