COVID-19 UK government guidance



On 11 May 2020 the UK government published its plan to bring England out of lockdown and get the country "back to work." Our plan to rebuild: The UK Government's COVID-19 recovery strategy sets out the government's aims, approach and roadmap to lifting restrictions as well as details of 14 supporting programmes of work to deliver the phased plan.
Simultaneously, the Department for Business, Energy and Industrial Strategy published a number of guidance documents for various sectors with a view to ensuring that workplaces are all as safe as possible when employees do start to re-enter them.

It is important to note from the outset that the guidance documents issued are non-statutory i.e. they have no legal standing. They are intended as guides only. In the event of a conflict between any applicable legislation (including health and safety legislation) and the guidance documents, the applicable legislation will prevail.

In practice, this means that employers must interpret applicable guidance both in the context of their own business and against the backdrop of existing health and safety law obligations.

Existing health and safety obligations

All employers have a core set of existing health and safety duties, primarily outlined in the Health and Safety at Work etc. Act 1974 (for a summary of employers' key health and safety law obligations in the context of the COVID-19 pandemic, see here). Broadly, employers have legal duties to:

  • so far as is reasonably practicable, protect the health, safety and welfare of their employees, and others who may be exposed to risks as a result of an employer's business activities; and
  • assess risks in the workplace and implement control measures to, so far as is reasonably practicable, either eliminate or reduce those risks to an acceptable level.

Key guidance points

Businesses should review the sector-specific guidance relevant to them. However, there are also a number of key points which apply across the board. Employers shall:

  • facilitate employees working from home where possible;
  • implement measures which enable social distancing (where people do not come within two metres of one another) wherever possible;
  • where social distancing cannot be maintained (for example, in certain areas of a workplace), implement other measures to manage that risk, such as PPE;
  • carry out COVID-19-specific risk assessments. There is an expectation that businesses with more than 50 employees will publish the results of these risk assessments;
  • review and strengthen cleaning procedures, and reinforce with good hygiene practices e.g. increased handwashing, hand sanitising etc.

Non-legal status

Whilst the guidance issued to date is not law, following it will usually assist in demonstrating that a business has acted "reasonably" and that it has therefore met its obligations under general health and safety legislation. Businesses are free to implement measures and undertake actions not envisaged by the guidance but should in those circumstances be prepared to demonstrate how those alternative measures result in an "as good", or preferably better, level of health, safety and welfare protection in the workplace.

In most cases, following government guidance will be a sensible and significant step towards ensuring that your workplace is compliant with its broader health and safety duties in the context of COVID-19, but following the guidance is not an absolute defence in the case of a breach of health and safety law. Nor will it be a cast-iron defence in the case of any civil pursuit by an employee who believes they have contracted COVID-19 in the workplace.

Not Approved Codes of Practice

The guidance does not have the same status as an Approved Code of Practice (ACoP). Generally, ACoPs provide practical guidance alongside some health and safety legislation. They are approved by the Health and Safety Executive (HSE) and the Secretary of State and have a special legal status which can reverse the burden of proof in criminal proceedings – meaning that, where an accused is proved not to have followed a relevant provision in an ACoP, the failure will be taken by the court as proof of contravention of the legal requirement in question, unless the accused can show that it satisfied the requirement by adopting suitable alternative measures.

The Covid-19 guidance documents currently lack the level of detail which businesses are used to seeing in similar publications by the HSE. Usually guidance of this nature covers issues such as how to comply with the law, explanations of specific requirements in law, specific technical information or references to further sources of information to help businesses comply with their legal duties. However, this is a developing situation, with new guidance being published all the time.

It is conceivable that the government in time may strengthen the status of its existing COVID-19 guidance. In the meantime, the lack of legal standing gives a level of flexibility which may be welcomed by some. Employers must be careful, however, not to misinterpret that flexibility as an indication of optional compliance.

Information contained in our COVID-19 articles and publications are correct at the time of print. This is however a constantly evolving situation across the globe and specific advice and guidance should be sought as required.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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