Health and Safety Protocol - Lead Worker Representatives

Posted in : Webinar Recordings on 29 June 2020
Bláthnaid Evans
Leman Solicitors
Issues covered: Coronavirus/COVID-19; Safety Protocol

As businesses start to reopen and the Safety Protocol is implemented, questions are arising around the role of the Lead Worker Representative. In this webinar recording, Bláthnaid Evans, Leman Solicitors, and Scott Alexander, Legal Island, discuss your questions.

Bláthnaid has provided a Q&A follow-up to answer questions from the session which went unanswered due to time - you can navigate to this using the menu below.

CONTENTS

Role of Lead Worker Representative
HSA Guidelines and Resources
Appointment of Lead Worker Reps
Training of Lead Worker Reps
Performance of Lead Worker Reps
Rights of Lead Worker Reps in Dealing with Non Compliance
Contact Tracing
Mobile Workers
Reluctant Workers
Penalties for Failing to Comply
Duration of Lead Worker Rep Role

Q&A Follow-up
Lead worker role/appointment
Lead Worker Representatives
Training
Other

The Recording

Transcript

Scott: Good afternoon. Welcome to the last webinar that we have for June from Legal Island. As you can see, it's on Health and Safety Protocol - Lead Worker Representatives. We've had a number of queries asking us to do something on that particular topic.

With me today is Bláthnaid Evans, who's a partner in Leman Solicitors. You can see Bláthnaid there, and she's on screen. We're going to be having a chat with a number of questions that came in before we broadcast at the moment. If you want to send in any questions, if you have a look on your right-hand side of your screen, you'll see there's a little box there called Questions. You can send questions into Bláthnaid and I, and we'll deal with them as we go through.

We have a number of e-learning training courses. Unsurprisingly, the new course that we've got there Return to Work Safely Protocol: COVID-19 Induction Training is very popular given that it's compulsory that employees going back to work have to receive induction training before they do so.

Anyway, let's deal with some of the questions. Bláthnaid, you're a partner at Leman Solicitors. You've seen a number of things coming through with the whole COVID situation with your clients that have been coming through. We're going to look at the duties and obligations. I suppose the first question just to set the scene:

Role of Lead Worker Representative

What does a lead worker representative have to do? What are their main duties?

Bláthnaid: Basically, the lead worker, in some ways I would look at it as the middleman, the point of contact with senior management, and their duty there is to report issues of any noncompliance, report it back. You make recommendations to senior management on how you might rectify any concerns. If people are concerned, for example, they might notice something in the way work is being done and they don't feel is very safe to report that back to the lead worker as might the lead worker make those recommendations as well.

They're there to keep the staff up to date on any measures that are coming in, and they should also be familiar with the protocols with the requirement they get the training. So they'll be keeping an eye on the protocol, which is a live document, so they need to keep up to date with that.

It's also very important for them to keep a record of any issues that are coming up, particularly with noncompliance and making sure that management are aware of all of that. The HSA has very helpfully created a type of checklist with regards to the lead worker which helps to show the types of duties and whatnot that we need. Unfortunately, the protocol doesn't give a lot of information of the duties, so we are quite reliant on that.

Scott: Just to let listeners know, you're listening to Bláthnaid Evans from Leman Solicitors. I'm Scott Alexander from Legal Island. Those HSA, there's a series of seven checklists plus posters and suchlike, including what it is the role of the lead worker representative. We'll send on those links after the broadcast. You can send questions in. They're all anonymous. They come through to us on the little Question tab. And you'll get the recording of this. It might not be later this afternoon. It might be tomorrow. But you'll receive the recording of this as well.

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HSA Guidelines and Resources

There's a number of very useful things within the HSA guidelines there, Bláthnaid. I really like the poster as well because it breaks it down into the role. What does the employer do, and how do I prepare? They're all set out fairly clearly for employers and employees take a look at.

Bláthnaid: Yeah, absolutely. It's really helpful. It's even worthwhile putting the posters up in the workplace so that everybody does understand the role of the lead worker. With all of these things, COVID is a very personal and very sensitive issue, so staff needs to be as aware as the lead worker as what the duties are so that they know who they can talk to, who they can trust if they have concerns, because some staff won't feel comfortable going to senior management.

So it is worthwhile checking them out. As Scott says, we will send them around. There's a lot of very helpful tips on what everybody's roles are, and I've no doubt that these will be updated as time goes on and as we learn more information about the virus. There may be more steps that need to be taken.

Scott: I can see a number of questions coming in. That's very good. Keep firing them in. We'll deal with them in a minute. Up until now, what I'm going to do is deal with the questions that came in just before we started the broadcast.

Social Distancing and Role of Lead Worker Rep

The next one that came in came in this morning, actually.

Some of the main areas of concern for our office with regard to social distancing are the main entrance, lift lobbies, and lifts, one in, one out. Would you recommend the COVID-19 officer," which I presume by that you mean the lead worker representative, "is visibly present at these locations during the peak periods, i.e. when staff arrive, lunch breaks, and home time?

This really gets to the meat of what the role of the lead worker representative is. Should they be standing there with a big badge on, saying, "I'm the lead worker representative"?

Bláthnaid: They don't need to stand there every day. I think the idea of the lead worker is that there's somebody that's on-site and, as I said, that they can report issues of concern, noncompliance, etc. So if there are specific areas and particular times which you would be concerned generally, then it's worthwhile saying to the lead worker, "Can you just make sure that you go by there at a certain time?" Stand around a little bit, even just introduce him or herself.

If they do see people, for example, that are clearly noncompliant, the lead worker can easily say to them and just be like, "Look. You need to wash your hands. You need to do this. You need to socially distance," and flag it up to them. If that doesn't fix it or if they think there's a bigger issue, then they can use that then to report back to senior management, and a decision can be made on what they can do to make that better, which could be training or whatever.

So in answer, no, they don't need to stand there every day, but it's worthwhile that maybe they could pick a day or two or just take a few visits around that time regularly for at least the first couple of weeks.

Scott: I suppose it's one of those things because there's so little specific guidance, specifically. It's not in the protocol. How are employees supposed to know who their lead worker representative is if they haven't been told, if there isn't some kind of communication thing going around, if there's not a picture up? It's a bit like in colleges and so on. You'll have some people that you'll go to if you've any personal concerns, say if you're at school or college, and that type of thing. The picture would be up there in the halls. You'd know who it was if you had an issue with some of the managers.

The information isn't just there. So I think an awful lot of it might just come down to trying to do the right thing, working with the lead worker representative if you're the manager, and making sure that the message is out there that it's a symbiotic relationship to some extent, and that's what the government would expect on a safety issue.

Bláthnaid: Absolutely, yeah. The worker representative isn't elected. They're just appointed. So it's not like staff will be involved in the appointment of the person. Management will pick who that is for whatever reason. So it's even more important than ever to make sure it's well communicated who the lead workers are.

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Appointment of Lead Worker Reps

Scott: It was one of the questions that actually came up.

Who picks the lead worker representatives? Is it management or the trade union? How do you select them?

Bláthnaid: Well, again, the protocol is quiet on this. It doesn't say anything. It doesn't say "election." It just says "appointed." What a lot of companies are doing is their Health and Safety representative often becomes the lead worker representative because they already have a lot of Health and Safety training and they're the obvious move-in. Again, if your trade union recognised, it's more obvious to pick somebody from that. If you recognise who you use and then you pick a person that's not covered by the union, you're probably going to cause more of an eruption there than ordinarily would.

It's really up to yourself. The main point of call is probably managements picks, but you would also as part of that just look to see what the makeup is, who does what, if there's any Health and Safety people and they are happy to take on the role. We'll get into this a little bit later, I know, but just in terms of if they are a vulnerable person, they may not want to take on the duties. So that might be another reason why you'd have to look at somebody else.

Scott: The next question that came up this morning was,

How many representatives should you have? What does the protocol say?

Bláthnaid: Again, the protocol doesn't give a lot of information. It just says you should have at least one lead worker, but it goes no further than that. How much is enough? A lot will depend on the makeup of how the workplace operates. For example, you might be one company, but you have a couple of workplaces. In that case, you might need more than one worker representative because they do require the representative to be on-site and looking around. There's no point to having a representative somewhere that's not physically in the workplace. That obviously doesn't make any sense. Look at the size of the business, the geographical range of the business. It could be that there's a few units quite close by. You might get away with one person.

Again, it's back to whether or not you have these Health and Safety people already there. Generally, when it's 50 people or less, probably one person would do, depending on how the business operates, but there's really no hard and fast rule. You probably need to look at how your organisation runs.

If there are very clear divisions like in a factory, for example, you might want a worker representative that's on the factory floor who's very familiar with the machines and all of that and then somebody who perhaps works in the office part of the factory. That could be two obvious people because it works very differently, and you would find that if you maybe had somebody in the office overseeing the factory floor, the people might feel that they're not getting their concerns as well.

The only thing I would say is you have to think about practical approaches and just really look at it and say, "If I break down my business in this way, who's best placed to be able to see on a daily basis what could be the health and safety concerns and be able to pick them up quite quickly?"

Scott: There's another question. I'll come back to that because Legal Island, we've made a series of videos for staff saying, "This is how you enter the building," and, "This is what the toilets now look like," and, "This is what's happened to the kitchen. The training room is now a dining room, and the Xs are marked along the spaces. This is where you stand if you want to chat to Peter. This is where you stand if you want to chat to so-and-so." We find that using videos would be one way.

Again, I suppose the question is do you operate with the lead worker representative to create those things? I suppose if you do, then you might get more compliance from the workforce, but if you don't, there's nothing in the protocol that says that you have to on those particular things about sharing the information. It's the employer's responsibility at the end of the day to maintain a safe working environment.

Bláthnaid: I think one of the core things here is the protocol says that one of the key issues is training, collaboration, and communication. It's the whole motto, "We're in this together." If you can get the lead worker on board with what the employer is trying to do, you'll find that it'll be easier to have them communicate what you're looking to be done and to get the rest of the staff on board. Whereas if you just appoint the lead worker and don't really have them involved in any part of the decision-making or the training or any of that, they're less likely to help everybody else out. The more you communicate, the more you get people involved, the more you're going to get back from it.

Scott: Another question that came in here. I suppose it ties in with the one just before that.

If an organisation has a number of offices, are they obliged to have a COVID-19 compliance one at each one?

Certainly, I think you covered that in saying that both places would certainly have to be inspected, and you'd expect somebody to be there to make sure there's compliance. But I suppose the add-on to this is,

Is this a full-time job or role, and can the duties be shared between a number of staff?

Employers have a difficulty there. If you appoint somebody as a worker rep and you give them a full-time job policing the area, they're not going to get any proper work done that they're paid to do.

Bláthnaid: This is the hard thing about it. The idea behind it is it's not a full-time job. That's meant to be the way it is. Definitely, if you can have more than one lead worker, you can certainly share the duties out, and you can divide that out, and that's much easier. But for the smaller organisations where you only would have one lead worker, there's obviously no one to share that work with now, but the flip of that is it's a smaller business. There isn't the same level of risk as a much larger organisation, so it can level itself out.

But it is clear that when you are looking to appoint a lead worker, you do want them on board. You need to sit down and think, "What do I need this person to do?" Then speak with the lead worker and say, "Look. We really value you taking on this role. We think you'd be very good at it. These are the additional types of duties that you would be doing." Try and get them invested in it.

The last thing you want to do is force this on someone. You need to explain, "There is going to be a bit of extra work. If you feel that it's too much, come back to us, and we can look at it." If that is the case, then you may need to look at appointing a second person. There's no reason just because you have a small organisation that you have two or three lead worker representatives. There's no cap on it, so to speak. That's the main point. It shouldn't really be full time, hopefully.

Scott: Hopefully. Just wait till we get after the other questions that are coming up here. It'll be full time just answering the questions.

Should I appoint a vulnerable person as lead worker representative?

You mentioned that earlier. Let's go into a bit more detail. What about them? Are they able to patrol the area if they're vulnerable?

Bláthnaid: There's two ways you can do this. If you have a lead worker who you've proposed to have and they are a vulnerable person, obviously you'd need to speak to them and see what they say about it. But if you have more than one lead worker representative, what you might be able to do is have the vulnerable person be in charge of some duties, and then the other person would be more in charge of walking around and checking the more higher risk places.

So there are ways around it, but if it's a small organisation and the person that you're thinking of is a vulnerable person, then it's probably advisable against appointing them as a lead worker. It's not that the lead worker is putting themselves in danger, but there is that slightly higher risk because you do need to be in the workplace more and you do need to walk around more and see what's going on.

As we all know, when you can work from home, you should be working from home, so you wouldn't want to be encouraging the vulnerable person to come into a workplace when they don't have to and putting them at risk.

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Training of Lead Worker Reps

Scott: Next question. Let's see here.

The protocol states that the lead worker representative should receive the relevant and necessary training from their employer. What should this training involve, and when should it be provided?

Bláthnaid: There's a number of organisations, as far as I know, that are starting to do training specifically on this. The training should be done as soon as possible and ideally before going back into the workplace. If it's not done, it should be done immediately upon them going in. All the training now, as we all know, is all being done virtually through Zoom and the likes of that. It's key that it's done early so that they're aware of everything.

The type of things that the training would want to include, firstly, you'd need to get the lead worker involved in your own policies. As you know from the protocol, you have to have your COVID Response Plan and you have to update your risk assessment and your safety statement, and they may well be able to input into the risk assessment as well. Don't forget, if they start seeing more things around the workplace that are of concern, that should be updating your risk assessment and putting that in. So it's very important they are familiar what's in there and what's in the safety statement to keep that all on top.

The HSA checklist, as we've discussed as well, that can really help out with it, but it's key as well that they're given training on the real practical things like, "What are the symptoms of coronavirus? What to look out for? What does the World Health Organisation recommend? How do they report issues? What is their reporting mechanism? If they have concerns, who do they go to?" All of the very practical, day-to-day things, it really needs to be thought out, obviously, before you do the training with the person in terms of that side.

But it is important that that's clear, particularly if the lead worker has a concern that is not being listened to. For example, say they have one manager and they're not listening. They need to know how they can escalate that. The last thing any workplace wants is that there is a breakout of the virus within there and the whole place has to be shut down again.

So a lot of the training will probably tie in with doing the risk assessment when you're thinking about the day-to-day things that need to be done, and the training will need to be updated. It's not just going to be one set of training and that'll be it. As the protocol is updated, as we get more information about the virus . . . take it even Friday there. Facemasks must be worn on public transport. Things are changing all the time. So as that is changed, then you need to get the lead worker involved and decide what you're going to do there, and then that needs to be communicated to the wider staff.

Scott: I suppose if it's on public transport and you wear a face mask, then any kind of shared vehicle within the place, and if you don't have a shared vehicle, it wouldn't apply there.

I think if you go back to those checklists from the HSA, if you go through that about the rep, it actually has questions. I'm just reading one or two here. "Have you been brought through an induction before returning to your workplace?" That's one of the questions. Obviously, Legal Island provide that training. I didn't expect that part to come in there, but, yes, only €10 a head. "Are you keeping your fellow workers up to date with the latest COVID-19 advice from government?"

That, to me, infers that they've got to be up-to-date and watching the websites and know what the latest information is because you can't do that. There's little tick-boxes. It says Yes, No, and then Action Required. So you actually have an action plan in that checklist number seven from the HSA which covers those things. "Have you a means of regular communication with your employer or manager?" Yes, No, and then Action Required. "Are you cooperating with your employer to make sure these control measures are maintained?"

So you can see that it's very much a living document that they have there, and if you're using those checklists as part of your training with your lead worker representatives, you'll be a long way there provided they've had the induction training in the first place.

Bláthnaid: Again depending on the size of the organisation. This probably wouldn't work as well with a smaller organisation, but if you do have a large organisation, it's worth it to have somebody in charge or overseeing the lead workers that they can report into. You're sitting down regularly on a weekly basis going through the checklists and seeing if there's anything there that needs to be worked on, if there's action required, and then it gives the lead worker another opportunity to say anything generally that's come up or any concerns that they have. All the checks and balances will make sure that you're doing as much as you can do in this really fast-changing environment.

Scott: We were chatting before this broadcast about the expected rise in claims that we're going to get as a result of employees either getting injuries from working at home because their workstations that they have are not appropriate, etc., but also if employers don't do the safety checks and work with the lead worker representatives.

That evidence is going to come out. We've seen it over in America where McDonald's are being sued, and many other employers are now beginning to be sued. The meat processing factory is being sued. Lord knows what's going to happen in Germany where there are 1,500 in meat processing. Leicester in England looks like it's going to be locked down again because of a meat processing place. The virus seems to love nice, cold, indoor surfaces, lots of stainless steel to live on, and therefore it spreads.

But at the end of the day, you got that presumably and most likely from a workplace, and that will lead to some kind of litigation. So all those things you're chatting about – working with people, trying to do whatever you can, looking at each individual workplace – are going to be important for employers. But here's the question.

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Performance of Lead Worker Reps

What should the employer do if the lead worker representative does not comply with his or her duties? Presumably, they volunteered for them. What you do as an employer if the rep's no good?

Bláthnaid: I think again at the outset when you're explaining to the lead worker what the additional duties are, they need to understand the seriousness of the role and the part that they're playing here in creating a safe place. It should be made known to them, "This is going to be a new duty, and if you don't comply with your role and these additional duties, this is going to be taken very seriously and could potentially be a disciplinary issue."

It's not for them to take on this role and then not do anything, but there is going to be a fine line there because you need to be very careful. We'll probably get to this question in a moment, but when the lead worker makes a suggestion and the employer, for example, doesn't like that suggestion, you can't then go and penalise them for that. It is tricky. It is definitely going to be difficult. And that's why it's very important to try and get them involved and invested in what you're trying to do.

But if they aren't going to comply with their duties, probably the easiest thing is to try and get somebody else to do the lead worker role. The problem is we need to act quick and fast. This isn't slow. You need to get on top of things and be like, "Well, look. This needs to be done." You need to sit down with the person very quickly. You need to go through what the issues are and be like, "Look. If you don't want to take this on anymore, we'll appoint someone else to do your role."

Unfortunately, it's nearly taken up even more than we'd all thought, but I think that's the reality of COVID-19. The cost of everything in terms of making sure we have the right checks and balances and safety measures in place are becoming quite high and probably higher than people anticipated.

So just keep an eye. Make sure that it's very clear at the outset what their duties are and what they must do. They must have the guidance on that. When they're not doing it, then they need to be pulled on it. I'm not saying invite them to a formal disciplinary meeting. Just say, "Look. This needs to be done. If you're not prepared, we can look and get somebody else in doing it." If it's a real breach of health and safety, it might become a disciplinary issue, but that could become quite a blurred line.

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Rights of Lead Worker Reps in Dealing with Non Compliance

Scott: Here's the final question that came in before the webinar here, and then we're going to get around to all your questions. They're building up, so send them into the Question box if you like.

What are the options open to the lead worker representative where he or she feels that the employer is not in compliance with its obligated under the protocol and Health and Safety legislation?

I suppose that's a reminder that it goes right back to Health and Safety legislation. That's really what underpins all of this. The individual has the right not to be penalised.

Bláthnaid: Yeah, exactly. Again, there's a couple of factors here. Firstly, when you're appointing the lead worker, as I said, you highlight the duties and you highlight who their point of contact is. In an ideal world – but again, I appreciate that this depends on the size of the organisation – you'd have the manager that they report to and then who they could potentially escalate it within the company – it might be the board or something – if they don't feel that they're being listened to. That should be well-documented in the response plan. If you have a protected disclosures policy, you may want to consider the potential issue in terms of making concerns with coronavirus.

But I think the key point here is, whilst this has not been underpinned by legislation, the protocol, it has been done in line with the Health and Safety Authority, and the Health and Safety legislation does provide that an employee cannot be penalised for raising a health and safety concern. So if you are a lead worker and you've raised a concern – for example, there isn't proper social distancing, and proper measures haven't been put in place to mitigate the fact that you can't social distance – you raise that. Nothing's been done. You've tried to escalate it. Nothing's been done. The person could potentially make a protected disclosure and highlight that to the HSA, for example, but it's very key that because an employer maybe doesn't agree with what the employee is saying they cannot penalise that person for having made that concern.

If you don't agree with what the employee is saying, for example, you need to be able to go back and explain why they're wrong, and you'll probably need some sort of medical evidence or whatever it is to show, "Look. We've actually decided to go down this road, and from all the information out there that this is the correct way to do it," and be able to back it up rather than just being like, "No, I don't like that," and just ignore them. Because it'll become quite easy for them to just say, "I was victimised because I made a concern. I didn't get a promotion. I didn't get this. I didn't get that."

What a lot of people aren't aware of is that an employee can bring a penalisation claim under the Safety, Health and Welfare Work Act, and if they are successful, the award is potentially unlimited at such amount that is just and equitable. It's a piece of legislation and it's a type of claim that's actually not very widely litigated on, but I think there is most certainly going to be a spike in them, no doubt.

The tensions are rising now, I'm finding, in terms of the stresses and the cost of things. It's getting more difficult. The easiest thing is just to be like, "Oh, I'll just ignore them. I don't like what they're saying. Let's just get on with it." By doing that, you're putting the company at risk. You need to think about it, consult with the lead workers, consult with management, and decide where you go with that.

Scott: I'm coming across people here at work saying, "Look. They're just not abiding by social distancing." It's difficult to ingrain that into anyone's head, I suppose.

If you've just joined us – and I see a couple of you have – you're listening to Bláthnaid Evans, who's a partner at Leman Solicitors, specialises in employment law. I'm Scott Alexander from Legal Island. We're going to get to your questions. You can keep sending them in. We'll get through as many as rapidly as possible. You will be able to listen back to this at broadcast tomorrow if you miss any of it or want to doublecheck anything at all.

Here's the first one, and this one is a wee bit off-topic but only slightly.

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Contact Tracing

Is there a requirement by the employer to keep daily contact tracing, or is this the responsibility of the individual? Would the lead worker rep be involved in that kind of question about contact tracing?

Bláthnaid: It doesn't say it has to be the lead worker involved. Usually, it's senior management. There has been some guidance actually produced by the DBEI in terms of the data protection side of this. The data should be kept for no more than is reasonably necessary, and it must be controlled.

I would recommend that it's actually probably someone in management. One person is dedicated to that role. They keep contact of the information, bearing in mind some of the information could be quite readily had, for example, if you have meetings of people that are coming into an office environment. It would be quite easy to do that. I wouldn't say that the lead worker would have that. I'd say it's probably too much responsibility and a lot of extra training in terms of data protection and in terms of what is necessary. It's probably better to just keep that with your management.

Scott: Here's another twist on a tale.

Should a part-time member of staff be made the lead worker rep in a small business? Childcare might only be in three days a week.

Bláthnaid: There's nothing to say that the lead worker has to be full time. As I said, it does require somebody to be in the workplace, and the reality is, because of the way we're doing work now, people aren't even in the office or going to be in the workplace all the time anyway. Arguably, yes, it could be done, but I suppose it does depend on the nature of the work and what is going on, and there does need to be a mechanism to be able to report something if the lead worker's not there. But that would be the same if the lead worker was on holiday. There would need to be a point of contact to be able to report something because this has to move so quickly. So as long as it's communicated to staff to say, "You're the lead worker, you work three days a week, and if something is urgent that comes up when you're not there, go to X," that should be fine.

Scott: "In a company without a Health and Safety department, what's the best way to elect a lead worker, and will there be certified training?" I think we've covered that. There's no election as such. It's selection, and it's up to management or maybe working with the union if there is a union.

There's no certified training as such, but we do have online training available through Legal Island, and there are other organisations out there I know that are doing specific training on lead worker reps. We certainly aren't at the moment because we think it's so individual to each workplace. You take the forms, you take the checklist, and you walk around the building, saying, "This is what we're going to have to do. This is where we have to change it," and that's very difficult to put in a training course. I think you take the HSA forms and walk around with your little clipboards and see what's safe for people.

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Mobile Workers

Do you also have a lead worker rep for mobile workers? The lead worker role appears to be specifically premises-related.

I don't know that it does, but what about mobile workers? I just had a delivery from the council with my new wheels and axle for my bin that they won't pick up because the wheels squint. It was delivered by a mobile worker. Should they have their own rep?

Bláthnaid: It's a good question. All the protocol says is that you must have at least one lead worker for each workplace. Could you categorise the working from home or the mobile workers as one kind of workplace? It is probably worthwhile to have a lead worker for those people that are mobile workers. Their duties are going to be very different to those that are physically walking around the office.

But the flip of that would be I would say the lead worker for those would need to keep quite regular contact with them. There would need to be a very open form of discussion because obviously they can't inspect what they're doing on of daily basis, but there needs to be a very free-range communication so that if there is a concern there it's flagged and highlighted very quickly.

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Reluctant Workers

Scott: As lead worker rep COVID-19 officer," this is clearly someone who's been appointed, "for an office with six staff, I am caught between an owner who wants people back in the office now and some staff who are nervous. Have you any advice on how to deal with this, please?

You can see that's the kind of thing that's going to come up and cause conflict because some employees are saying they might be cocooning or they might be vulnerable, as we mentioned earlier, and the employer's going, "Get back into the workplace." Yet there seems to be government guidance saying, "Work from home if you can." What does the lead worker rep do here caught between the middle? What's safe? What do they do?

Bláthnaid: That's a really hard one. As you said, the standard is, "If you can work from home, work from home." What I would suggest is speak with each of the individuals. Get their concerns. Find out exactly what it is. Tell them it can be done on a confidential basis. I appreciate it's only a small organisation, so they may be able to roughly guess, but you don't need to give that information.

I would explain to the employer and say, "Look. I've spoken with everybody. These are their concerns. We're in Phase 3. We still have to work from home. There's a potential high risk here of a claim." That's the reality of it here. "If we all rush back into work too quickly, what's your risk here? If one or the whole workplace gets COVID-19, nobody's going to be able to do any work. You're looking at that for a good few weeks." Sometimes you have to be very brutal with the information in order to get it across, and I would document this. Put it in an email. Clearly set out what the concerns are in the hope that that will bring a bit of reality.

The flip of that is if he insists that you must go into the workplace and employees refuse to go in, which again is something that's happened quite a lot, for their own reasons, it becomes quite tricky. So if there's a real medical reason for them not coming in, even if they're living at home with a vulnerable person, they can get a letter from their doctor to say that they have to self-isolate for that reason, and the employer can't force them to come in. If there's no other practical reason and you're not able to raise any sort of genuine health and safety concerns and the employer can show that they can make a safe place, then it becomes quite difficult to continue the refusal.

It's a very fine line. It's a very clear balancing of different things. Set out exactly what your concerns are and send them in an email to reinforce what they are because sometimes the conversation just goes over everybody's head.

Scott: I suppose each individual should really be having their own risk assessment about going back to the workplace anyway as well. There really should be risk assessments in the home if you're working from home. You can imagine it going to the WRC and an adjudication officer saying, "Why did you force this person back to work?" or, "Why did you sack them when they said they were a vulnerable person?" or the individual has taken an associated discrimination claim because they're looking after family members who are sick or they themselves are disabled.

The employers, I suppose you're weighing up the risk. You either get the person back or you don't. I think a lot of it's going to come down in the next few months to productivity, and that will be the argument for getting people back. It's not efficient or it's not safe anymore to work from home. It's safer and more productive to move into the workplace. But the employer really needs the evidence of that. To just say, "I think you're not doing enough at home . . . "

Bláthnaid: That's not going to fly.

Scott: WRC are waiting for given that they all are working from home.

Bláthnaid: I think what we're going to see is a lot of temporary workers coming into the workplace to bridge this gap for people that just can't come in for whatever medical reason. Then you just get people in on fixed-term contracts to cover the gap. That's the reality of what's going to happen.

Scott: People that won't argue, I suppose, in another way.

I'm a worker rep in a small firm, and everyone knows me and has been told. Am I supposed to be on site now even if we're not back in the office till September? The only facilities are on site now.

There again you've got a situation where the lead rep, it's not that it's unsafe. It's just that if they do go back to work, they're lead worker at the moment, and they're not in the workplace. Presumably, their job is to go into the workplace, assess it, and until they've been there and worked with management assessing the risk, people shouldn't be back.

Bláthnaid: Yeah, exactly. I suppose in some ways they don't quite have the same level of duties because you're not in on a day-to-day basis to be going around and doing the rounds and seeing what's going on. Some of the duties of the lead worker is to keep up to date with recent updates with COVID-19, keep an eye on the protocol, make sure that people know who you are.

There's nothing to stop you going in to work with management in terms of you going into the workplace and saying, "Let's go all go in together and do a walk around and see if there are any issues." But there's still a lot more duties there. It's not just physical presence. They're being an organisation that's being very well-organised compared to a lot of them out there, the fact that they have you appointed, so take this time to really get familiar with your role and what they expect of you. Try and have a bit more of a conversation with them to be like, "How is this going to work on practical basis?" and all of that.

Scott: We have a question in here. I think we've covered it, but you can say yes if you like.

Is every workplace expected to have a lead worker rep, even small businesses?

Bláthnaid: Yeah.

Scott: There are no exceptions.

Bláthnaid: No. They're saying everyone must have at least one.

Scott: That one I think we've answered. Let's have a look at this one.

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Penalties for Failing to Comply

What is the risk or penalty if you have no lead workers but you believe you have taken adequate steps to inform all employees of the correct protocol?

Here's an employer that knows everything, and they've done everything, and they haven't got a rep. What would be the problem?

Bláthnaid: There's a couple of things here. The main one is the inspectors. As you probably all know, there's been a lot more Health and Safety inspectors appointed. When they're going out and doing the inspections of the workplace, obviously the focus lately has been construction and retail because they've been the main ones who have been open until now. But when they're going in, they want to see that COVID induction training has been done. They want to see if there's a response plan. And they're looking for the lead worker, and then they're speaking to the lead worker, and they want to see what training they've got. Are they aware of their duties?

If that's not there, what the HSA can do is issue an improvement notice. That would set a timeframe whereby somebody has to go and appoint the lead worker representative. Now, the protocol is not reinforced by Health and Safety legislation, so there aren't the criminal sanctions that come with an ordinary breach in Health and Safety legislation. Beyond the improvement notice or potentially a prohibition notice, which could shut the workplace down, beyond that they can't go much further.

Then you're looking at civil liability and personal injuries claims if somebody was to get COVID-19 in the workplace and you could show that had there been a lead worker representative that this could have potentially been mitigated.

Scott: I suppose it is about weighing up the risk, but I don't know what the big risk is. If you think you've done everything, appoint a rep and say, "This is what we've done." If it's right… It's supposed to be done before that.

Bláthnaid: As in all these things, the protocol is out there, and it's very key that you must have a lead worker representative. That is going to go against an employer in terms of a personal injury claim if it ever gets to that. If you're acting for the employee, you're going to be going in and saying, "This was the protocol. What are the requirements as a lead worker representative?" They'll say, "Well, if the lead worker representative was there, there would have been a point of contact. They would have been able to flag these things much easier. Somebody would've felt more free to speak."

The flip of that is the employer is going to say, "Well, I did everything," and you're going to say, "But an extra person in there, an extra head, an extra thought process, would've helped to flag these issues much earlier on." So you can certainly get into a debate about it, but I think because the protocol is quite clear that it's mandatory and you must have these in place, it would certainly go against any employer.

Scott: We've still got a few questions to go, so we'll maybe hang about for another five minutes or so if that's okay. If you have to leave early, anyone, you'll get the link. You can listen back.

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Duration of Lead Worker Rep Role

Is there any indication of when the role will dissolve? Is it only once a vaccine has been found?

Bláthnaid: That's the million-dollar question. I would imagine so, yeah. There's no guidance on that. The protocol is a live document that's changing all the time. It's being updated all the time. That would be the logical thing once the vaccine is there, but who knows?

Scott: And schools.

There's maybe only 50 staff, but there will be hundreds of pupils in some schools. It is the lead worker just for staff? Should there be more than one in that case?

Bláthnaid: There certainly should be more than one lead worker, I would say, and it would be more than staff. You have to look at the entire workplace. What is going on? It's the same with even an office building when you just have visitors. Obviously, it's not to the same scale as the amount of pupils that you would have, but any pupils that are coming in, that raises potential risk, so that all needs to be flagged up, and you have to put protocols in place in terms of the pupils coming in and what safety measures need to be taken. It could be a lead worker per year, depending on the size of the school, for example.

Scott: I'm just trying to come up with one final question here that's really exciting.

Should the lead worker rep be on the workplace COVID committee and be involved in the actual planning of safety protocols?

Bláthnaid: We sort of touched on this a bit earlier. Again, the protocol doesn't really provide for this, but I would recommend it. It's back to the point that if you get the lead worker involved and invested in what the employer is trying to do, they're more likely to work this together and comply with the same rules. Whereas if the lead worker feels excluded, they're probably less likely to do their duties and to comply, and then you get into the very difficult scenario of the lead worker not doing what they're meant to do.

Scott: We'll take one conflated question. Then we're going to end it there, everybody. I'm going to put the two together because they both deal with vulnerable persons, and this is going to be a big issue for people.

Can you give some recommendations on special arrangements or extra precautions for vulnerable employees coming back to the office? If an employee doesn't want to return because of long commute and the danger of public transport, how do we deal with that, assuming they're not living with vulnerable people?

Again, it may be that you've got an employer saying, "We want everybody in." The lead worker rep there – it must be a thankless task – is sitting there going, "Hold on. My members, my colleagues, one of them is vulnerable or living with vulnerable people. The other one's saying public transport's too dangerous, and they don't have a car." What happens there other than you're piggy-in-the-middle if you're a lead worker rep?

Bláthnaid: It's a really difficult one. Taking the person who's the vulnerable person potentially, again, in each case you need to sit down with both of them and say, "What are the concerns? How can we work around this?" At the same time, there have to be reasonable measures here. An employer can't be put at extreme expense to mitigate something.

But insofar as that person can continue to work from home, they should do. For the person that's getting public transport, I know, for example, what we're even doing in our workplace is we're encouraging everybody to walk, cycle, drive where they can. If they can't and they have to take public transport, then they don't need to come in at 9:00, and they don't need to finish at 5:30. They can come outside those times so long as they do their contracted hours. If it's easier for them to come in at 10:00 a.m. or whatever it might be just to take away that risk, provide them with a face mask and take away those concerns.

They're right to have concerns about public transport. I would be a bit concerned myself with public transport. But I think when you're putting those measures in place, it then becomes unreasonable if you're able to show that the workplace is safe as well. Again, if the workplace, for example, you're not able to socially distance properly and there's a higher risk there, you may need to say for people that have a long distance to commute to maybe look at delaying them coming back.

It's the same with the vulnerable person. It's hard again to know, and they're probably less likely to come back as quickly. I think with those types of people, we're going to be looking at coming back a bit later into the office when it is safer and encourage more working from home. If they can't work from home, if they have to be in the workplace, then you're looking at arrangements whereby potentially they're going to claim the COVID illness benefit, and then you may have to get somebody in on a fixed-term contract to bridge that time if the person's physically required in the office.

Scott: Thank you very much to Bláthnaid Evans from Leman Solicitors. I'll remind everybody, just in case you don't know, that Leman Solicitors have kindly offered Legal Island customers 15 minutes of free advice. So if you want to contact, you can see Leman Solicitors' details there on the screen. If you have any personal issues or specific questions that you have, you can send them to Bláthnaid.

We'll pull this webinar together, the recording. You'll be able to hear it tomorrow and listen back if you have any other issues. That's it. Thank you very much. Our next webinar, the final one, I think, of the summer that we have planned at the minute, is on the 9th of July, and that's with the HR Suite and Rolanda from Legal Island. We'll see you soon. Thanks very much, everybody. Thanks, Bláthnaid.

Bláthnaid: Thank you. Thanks.

Q&A Follow-up

Lead worker role/appointment

1. Is there a ratio of lead worker to personnel?

The Return to Work Safely Protocol (the “Protocol”) does not specify a ratio of Lead Worker Representatives (“LWR”) to personnel. The Protocol states that the employer is required to appoint at least one LWR. However, it further states that the number of worker representatives appointed will, ideally, be proportionate to the number of workers in the workplace and this person should be clearly identifiable in the workplace. As such, it may be considered whether a sufficient number of LWR’s have been appointed to meet the needs of the organisation. This may depend on a number of factors including:

  • The size of the business
  • The geographical range of the business
  • How many offices / sites it holds in Ireland
  • The nature of the work and occupations
  • Working time of the employees

For a smaller office with up to 50 employees, one lead worker should be sufficient. The key point for the employer to consider is whether, based on the number of representatives appointed, the business is in a position to comply with its obligations under the Protocol, its COVID-19 Response plan and guidance from the Health and Safety Authority.

2. Has there been any indication when this role will dissolve e.g. once a vaccine has been found?

The Protocol does not state when the role of LWR will dissolve.

3. In a company without a H&S department what is the best way to elect a Lead Worker and will there be certified training made available?

The Protocol does not advise on how elect an LWR. As such, this is at the discretion of the Company. In most cases the LWR is appointed by management, rather than going through a formal election process.

In some workplaces management may elect that the Health & Safety Officer also acts as LWR. Depending on the number of employees interested in this role and based on their skills or experience, the organisation may engage in discussions to elect a number of LWR’s. The employer should have the final say on who is ultimately appointed to the role of LWR, taking into account his/her suitability for the role. If intending to offer the role to an at risk / vulnerable person, it will be important for the employer to take into consideration that the LWR will likely come into close contact with colleagues.

There does not appear to be any certified training available for the role. Under the Protocol, the lead worker representative is entitled to “receive the relevant and necessary training by their employer”, however, it does not advise on what this training will involve.

However, the HSA LWR Checklist indicates a number of factors that a LWR should consider to help understand their role in their workplace. Taking this into account we would advise that training includes the following:

  • Understanding the role of the LWR within the organisation;
  • Keeping up to date with guidance from the HSE in respect of issues such as hygiene and social distancing;
  • Keeping up to date with guidance from the HSA and government in respect of health and safety advice;
  • Practical measures for fulfilling the duties of the LWR including:
         - How the LWR will receive information requests/complaints/feedback from other workers;
         - How often will the LWR meet with his/her employer to provide updates on representations received from staff;
         - How can the LWR access certain facilities in the organisation in order to mitigate the spread of COVID-19? E.g. sanitiser, posters or special requests received from vulnerable workers.
         - How will the LWR escalate certain issues within the organisation.
  • How to manage record keeping and maintaining a contact list and details of incidents of suspected COVID-19 cases in the workplace;
  • Importance of confidentiality and data protection in operating the role;
  • Importance of communicating with all staff appropriately, including vulnerable workers;
  • How to deal with complaints from workers regarding compliance with the Protocol and company policy; and
  • Guidance on any supports available for staff.

In practise, the LWR will require reasonable time-off both to appropriate training and to carry out the function.

4. Is there any potential conflict if staff in particular roles are the LWR?

The Protocol states the LWR must ensure that “Covid-19 measures are strictly adhered to in their place of work. The purpose of this role is to work collaboratively with the employer to assist in the implementation of measures and monitor adherence to the measures to prevent the spread of Covid-19".

As the role of LWR is to act as an intermediary between staff and HR and work collaboratively with the employer, it is recommended that senior management / HR be distinct from the role of LWR as individuals in those positions are required to maintain a supervisory role over the LWR. This is to ensure:

(1) that any complaints are dealt with in an independent and objective manner;

(2) to avoid any potential overlap between the role of LWR and HR. This is particularly important when processing any grievances or protected disclosures arising from compliance with the Protocol.

5. Is there guidance on the recruitment and selection process around the appointment of this role(s)?

Please see question 3 above.

6. Unions are saying they pick the LWR?  Bláthnaid says it is the employer who appoints.  Will this lead to friction at local level?

The Protocol clearly states that “an employer will appoint at least one LWR…”

Unless the employer authorises that the Union appoint the LWR (which isn’t advised) or is provided for in some form in the relevant collective agreement, this is a matter for the employer.

However, in accordance with the Protocol, employers should have regular and meaningful engagement with their worker representative, workers and/or their recognised Trade Union or other representatives (including their Health and Safety Committee where this exists) about the measures being put in place to address the occupational exposure to COVID-19 in the workplace. This however, does not extend to selecting/appointing the LWR and it is advised that the employer is best placed to make this appointment.

7. Who should decide on the person appointed to the LWR - management or trade union?

Please see response to question 6.

8. Can lead worker be a member of your senior management?

Please see response to question 4. While the lead worker can be a member of senior management, we would advise against this.

9. For a team of sales reps spread across all counties in Ireland, is it appropriate to allow each rep be a lead worker. i.e. represent themselves individually as they are not based in one location together

The Protocol states that each “workplace” will appoint at least one lead worker representative, so that would suggest that you will need one at least for each place of work. The crucial point is whether, in practical terms, the function of the LWR can be met by the number of appointees proposed

10. What about a school setting? There may be only 50 staff but there will be 100s of pupils. Is the lead worker just for staff? Should there be more than one in that case?

The Department of Education and Skills has published a draft Covid-19 Response Plan for primary and special schools in the new school year. This states that:

“The process for appointment of the Lead Worker representative in schools will be agreed centrally between the Department of Education and Skills and the education partners. That process, once agreed, will be circulated to all schools in advance of the re-opening of schools.”

A July Provision Covid-19 Response Plan has been published, which states:

“The Return to Work Safely protocol provides for an agreed procedure between management and staff to appoint a Lead Worker Representative to carry out a specific role. Given the short term nature of a summer provision programme and the likely involvement of only a small cohort of staff who may or may not be normally employed by the school, it is recommended that for the purposes of summer provision, a worker representative can be sought from this cohort of volunteering staff.” 

11.  In accordance with the Protocol, the number of LWRs will vary according to the needs of each School. Is every workplace expected to have a lead worker rep? Even small businesses?

Minister Heather Humphreys has clarified that it is recommended that businesses of all sizes elect at least one lead worker representative in order to deal issues relating to the return to work following the COVID-19 lockdown. The Health & Safety Authority (HSA) have also confirmed that in the event of a workplace inspection, among other things, they will want to see that a LWR has been appointed. In this regard, it is most likely that the HSA Inspector will ask to speak with the LWR to see if they have received the relevant training and to ask them about their role.

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Lead Worker Representatives

12. Do you need to have a rep present every day that people will be on site given we will be rotating people across the week

The Protocol does not state that the LWR is required to be present every day.

It is not envisaged that the role of LWR will be a full-time role and that it will be perfectly acceptable that the LWR will not be on site every working day – as long as the LWR will be able to maintain regular and meaningful engagement with their employer and fellow colleagues in terms of managing a safe return to work.

13. As lead worker rep / covid-19 officer for an office with 6 staff I am caught between an owner who wants people back in the office now & some staff who are nervous - have you any advice how to deal with please?

The Protocol states that office work should continue to be carried out at home where practicable.

In terms of at risk / vulnerable workers, employers should enable such workers to work from home where possible. If an at risk or vulnerable worker cannot work from home and must be in the workplace, employers must ensure that such workers are preferentially supported to maintain social distancing.

The LWR should work collaboratively with staff and the employer to come to an arrangement so that compliance with the Protocol can be maintained and to protect the safety, health and welfare of staff.

14. Should the lead worker rep be on the workplace covid committee and be involved in the actual planning of safety protocols?

As the LWR will be the medium through which COVID-19 health and safety protocols will be passed from the employer to the employee, it is advised that the LWR be part of the workplace COVID-19 committee. It would also be beneficial if the LWR be a part of the planning process in an advisory role.

15. Does a Lead Worker need to be available onsite at all times when you have a flexible working office with working hours? If the Lead Worker was off for a day - is there any concerns for this?

As stated in the answer to Question 1 above, there is no requirements that the LWR be present in the office daily. It is not envisaged that the role of LWR will be a full-time role and that it will be perfectly acceptable that the LWR won’t be on site every working day – as long as the LWR will be able to maintain regular and meaningful engagement with their employer and fellow colleagues in terms of co-ordinating a safe return to work.

16. Could a part time member of staff be made lead worker rep - in a smaller business (childcare) - might only b in 3 days a week

As stated in the answers to Questions 1 and 4 above, it is permissible for a part time worker to be appointed as the LWR.

17. We will be moving to pod working, keeping departments isolated where possible and potentially in different (however, co-located) buildings/ trucks etc. How should this be managed in relation to the Lead Worker Rep? We are trying to minimise work between pods and also different departments will run on different hours. Additionally large amount of work may be done on location, while other workers will be back at unit base. How best to manage?

Best practice here may be to elect an LWR for each pod / department as the Return to Work Safely Protocol indicates that there can be multiple LWRs. It would be up to management to decide how these LWRs would operate cohesively as in terms of implementing health and safety protocols in their respective pod / department.

Collaboration and feedback from staff is emphasised throughout the Protocol. As such, it is advised that the LWR responds to any issues or complaints which may arise in practice and monitors the implementation of the plan to ensure compliance with the Protocol.

18. I'm the worker rep in a small firm and everyone knows me and has been told, am I supposed to be onsite now even if we're not back in the office until September? Only Facilities are onsite now.

The Protocol states that office work should continue to be carried out at home where practicable therefore the stand taken by the firm is reasonable.

The Protocol does not require the LWR to be on-site at all times but must be prepared to co-ordinate return to work procedures as set out by the employer.

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Training

19. Can the LWR be self-trained? If they are the person responsible for safety.

The Protocol states in relation to the role of an LWR – “The person(s) undertaking the role must receive the necessary training and have a structured framework to follow within the organisation to be effective in preventing the spread of the virus.”

The employer should ensure that the LWR receives appropriate training in order to adequately fulfil their role.

20. The lead work rep is meant to undergo training according to the protocol. Where is this available?

Under the Protocol, the lead worker representative is entitled to “receive the relevant and necessary training by their employer”, however, it does not advise on what this training will involve.

The HSA LWR Checklist indicates a number of factors that a LWR should consider to help understand their role in their workplace. Taking this into account we would advise that training includes the following:

  • Understanding the role of the LWR within the organisation;
  • Keeping up to date with guidance from the HSE in respect of issues such as hygiene and social distancing;
  • Keeping up to date with guidance from the HSA and government in respect of health and safety advice;
  • Practical measures for fulfilling the duties of the LWR including:
         - How the LWR will receive information requests/complaints/feedback from other workers;
         - How often will the LWR meet with his/her employer to provide updates on representations received from staff;
         - How can the LWR access certain facilities in the organisation in order to mitigate the spread of COVID-19? Eg sanitiser, posters or special requests received from vulnerable workers.
         - How will the LWR escalate certain issues within the organisation.
  • How to manage record keeping and maintaining a contact list and details of incidents of suspected COVID-19 cases in the workplace;
  • Importance of confidentiality and data protection in operating the role;
  • Importance of communicating with all staff appropriately, including vulnerable workers;
  • How to deal with complaints from workers regarding compliance with the Protocol and company policy; and
  • Guidance on any supports available for staff.

In practise, the LWR will require reasonable time-off both to appropriate training to carry out the function.

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Other

21. What is the risk or penalty if you have no Lead workers, but you believe you have taken adequate steps to inform all employees and managers of the correct protocols?

It has been confirmed by Minister Heather Humphreys that the Protocol is mandatory for every workplace. This in effect means that the appointment of an LWR is mandatory.

The HSA will have powers of enforcement in respect of the Protocol and will be conducting workplace visits to advise on any shortcomings. In this regard, the HSA may issue a Report of Inspection, setting out timelines and follow-ups required, an Improvement Notice, requiring that certain improvements be carried out in a specified time-frame or a Prohibition Notice, directing that a specified work activity be stopped. Where employers fail to comply with such directions, the HSA is empowered to order the closure of a workplace.

The appointment of and a proper functioning LWR could also help an employer mitigate any potential liability arising from a personal injuries claim brought by an employee who allegedly has contacted COVID-19 in the workplace.

22. What if we deem our direct engagement model and existing communications channels adequate and we have no appointed Lead workers? Is there a risk? What is the risk?

As stated in the answer to Question 1 above, it has been confirmed by Minister Heather Humphreys that the Protocol is mandatory for every workplace. This in effect means that the appointment of a LWR is mandatory.

23. Is there a requirement by the employer to keep daily contact tracing, or is this the responsibility of the individual?

According to the Protocol, the employer is required to manage record keeping and maintain a contact list and details of suspected COVID-19 cases in the workplace in order to facilitate contact tracing.

The employee has responsibility to make themselves aware of the signs and symptoms of COVID-19 and monitor their own wellbeing; self-isolate at home and contact their GP promptly for further advice if they display any signs or symptoms; and report to managers immediately if any symptoms develop during the shift.

24. We are also seeing appointment of Compliance Officers, is there guidance on what organisations should appoint a Compliance Officer and what the difference in their role is?

The Protocol does not refer to the appointment of Compliance Officer. It is understood that sectoral guidance for construction advises on the appointment of one or more COVID-19 compliance officers on-site. The Construction Industry Federation guidance on the role of a compliance officer is available here. This is a separate and distinct role to that of a LWR. It is advised that organisations in the Construction Industry appoint both a compliance officer and LWR. The role of the Compliance Officer is to:

  • Monitor day to the site activities to ensure social distancing and hygiene rules are being maintained to protect health and reduce the spread of the C-19 virus.
  • These key personnel should be clearly identifiable onsite with a distinguishable high viz vest with C-19 Compliance Officer written on them, similar to the illustration provided.
  • The person undertaking the role must receive training in what the role will entail.
  • Ensuring compliance to the 2m social distancing rule and good hygiene is not the sole responsibility of the C-19 Compliance Officer. Their role is supported by all site management and workers.
  • Site Management must communicate to all onsite details of the appointed C-19 Compliance Officer(s).
  • A C-19 Compliance Officer must not put themselves at risk while carrying out their duties.
  • C-19 Compliance Officers must have a structure or framework to follow within the organisation to to be effective in preventing the spread of COVID-19. This structure must be regularly audited and managed to ensure it works and protects all onsite. Failure to take it seriously could result in an outbreak of COVID-19 onsite.

 25. What if not vulnerable and quoting roadmap that says WFH where possible and refusing to come back to work?

This would depend on Company policy and the employee’s ability to fulfil tasks at home. If there is no Company Working from Home Policy is in place, the employer should develop and consult on any working from policy in conjunction with workers (or where appropriate, Trade Unions).

It is advised that the employer collaborates and communicates with staff who are refusing to attend the physical office space.

The Protocol advises that, where practicable, office work should continue to be carried out at home.

26. If an employee doesn't want to return because of a long commute and the danger of public transport how do we deal with that? (assuming they are not vulnerable/living with someone vulnerable)

Similar to Question 5 above, this would depend on Company policy and the employee’s ability to fulfil tasks at home. The employer should consult with employees refusing to attend the office. It may also be necessary to develop a remote working policy in order to ensure that the employer reserves the right to determine the employee’s place of work.

Also given that the current Government direction is that all employees who can work remotely, should continue to do so, an employer will have to show the mandatory requirement to have the employee at the workplace before any issue can be made of his/her refusal.

27. If someone does become unwell at work, who is responsible for their transport home? Also, can employers keep a record of employees GP's details again in case they become unwell.

According to the Protocol, if a worker displays symptoms of COVID-19 during work, the manager and the response team must arrange transport home or to hospital for medical assessment. Public transport of any kind should not be used.

Retaining a record of the employee’s GP’s details can be classified as special category data under the GDPR. As such, personal data shall should not be kept for longer than is necessary for the purposes for which it is being processed.

28. Can you give some recommendations on what special arrangements / extra precautions for vulnerable employees coming back to the office?

The Protocol states that if an at risk or vulnerable worker cannot work from home and must be in the workplace, employers must make sure that they are preferentially supported to maintain social distancing requirements.

In terms of specific advice for dealing with vulnerable workers, employers should (this list is non-exhaustive and subject to change depending on the circumstances):

  • Ensure at least a 2-metre distance from each employee. Where this is not possible employers should consider introducing rotating days for all staff to reduce capacity i.e. John works Mondays, Wednesdays and Fridays, and Mary works Tuesdays and Thursdays;
  • Erect Perspex dividers between desks (if office setting); and
  • Limit access to canteens, bathrooms and other facilities where staff would come into close contact.

Employers should ensure they collaborate with these staff in order to comply with reasonable accommodation requirements under the Employment Equality Act 1998 (as amended). As such, it may be necessary to have the relevant employee assessed by occupational health to make sure that suitable reasonable accommodation has been put in place to accommodate their needs and to ensure a safe return to work.

The employer should ensure they continuously update their risk assessment in line with the needs of any vulnerable workers.

It is crucial that the employer records and documents any discussions with staff and responds appropriately to their needs.

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This article is correct at 29/06/2020
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Bláthnaid Evans
Leman Solicitors

The main content of this article was provided by Bláthnaid Evans. Contact telephone number is +353 632 3113 or email bevans@leman.ie

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