Review of enforcement during the coronavirus (COVID-19) pandemic

Removal of most coronavirus (COVID-19) restrictions

This page is up to date following the removal of most restrictions in England. There are different regulations and guidance to follow for Scotland, Wales and Northern Ireland.

The latest advice on keeping workplaces safe will help you assess the risks and continue to reduce COVID-19 transmission. This includes links to information on vaccination, as well as on testing, tracking and tracing (including where variants are spreading).

Background

The unprecedented global coronavirus pandemic has required a unique response by government, regulators, dutyholders and workers.

The control of transmission of coronavirus has been led by public health authorities in Great Britain and to help reduce the spread of the virus in all settings (community and workplace) while ensuring critical facilities and services were maintained. This required a significant cross-government effort.

The Health and Safety Executive (HSE) has taken the pandemic extremely seriously. We have had to adapt from regulating risks generated by a work activity within a work environment to regulating a public health risk (a community disease transmissible across society).

Our role has not involved enforcing any of the legal requirements under coronavirus-specific legislation, including mandatory wearing of face coverings in certain premises or deciding which businesses could open during periods of lockdown.

Our role has always been to support the wider national public health effort through assessing and reducing the risk to workers and others (eg contractors) in the workplace, while working with local authorities, other regulators, as well as central and devolved governments.

To do this, HSE has reorganised and refocused its resources and used a range of interventions to meet the unprecedented challenge. These have included:

  • working with other government departments to develop policy, guidance and research
  • enhancing other workplace regulatory functions, including market surveillance, to ensure a safe supply chain, for example in relation to personal protective equipment (PPE) and hand sanitiser supply
  • regulating (inspecting, investigating and enforcing) by targeting businesses and organisations to reduce coronavirus workplace transmission

We have achieved this alongside our continuing regulation of major hazard industries and responding to incidents involving death and serious injuries.

HSE’s approach to regulating in the pandemic

Throughout the pandemic, we have supported Great Britain’s public health response in the workplace by adopting a risk-based approach. We have used health and safety at work legislation, government guidance and best available evidence to ensure dutyholders are aware of, and take, the necessary controls to reduce the risk of transmission in the workplace.

HSE’s interactions with dutyholders indicate that the heightened public and dutyholder awareness of the risks and controls has led to an unprecedented understanding of and willingness to combat the risk, which has undoubtedly influenced dutyholder behaviour.

Our approach to regulating exposure to coronavirus has been developed in accordance with the principles contained in our published Enforcement Policy Statement (EPS), which requires enforcement action to be proportionate to the risk and to the seriousness of the breach.

Every day inspectors use their professional judgement to make enforcement decisions to ensure that risks in the workplace are properly controlled. To assist them in making proportionate and consistent decisions, they are guided by the Enforcement Management Model, procedures and guidance.

The EMM is a technical document which relies on definitions specific to its application, using some words which have a different meaning to their use in normal everyday language.

We have used the EMM for over 20 years when dealing with conventional occupational health and safety risks arising from work activities, guiding proportionate and consistent enforcement outcomes through its sound regulatory principles.

Due to the rapid onset of the pandemic, HSE considered the developing circumstances  and applied the EMM principles to the risk of exposure to a public health virus in the workplace, for the first time in this extraordinary situation. 

The Enforcement Management Model (EMM)

When using the EMM, inspectors firstly use the information about hazards and control measures they have collected and observed during a visit to make an initial assessment of the health and safety risks posed by the various activities and to determine the actual risk (where the dutyholder is in terms of their compliance with health and safety at work law).

Inspectors then compare this to the risk outlined by the law or in guidance and decide the benchmark risk, which is the difference between where the dutyholder is and where they should be. This is known as the risk gap.

The risk gap is then compared to the authority of the relevant guidance to determine an ‘initial enforcement expectation’. Consideration of various dutyholder and strategic factors further determines the enforcement outcome which can range from verbal advice, through written advice, to enforcement notices (improvement and prohibition) and prosecution. The final enforcement conclusion is determined by the inspector.

Actual risk and benchmark risk are determined by a consideration of both the consequence and the likelihood of exposure to a particular hazard. The consequence is the nature of the harm that could be reasonably expected to occur. The likelihood is the probability of the event happening.

When considering the consequence of exposure to occupational health risks (risks arising directly from a work activity) and the likelihood that harm may occur, the most credible ill-health outcome resulting from exposure is used.

There may be instances where the actual health effect is different to that which could have been anticipated as the most credible, eg there will be circumstances where lesser health effects might well be the outcome. Worse outcomes may be possible, but the approach taken in the EMM does not reflect the worst-case scenario. The EMM model does not include an individual’s resistance or susceptibility. The effect of exposure to a health risk is determined by the likely response in the working population as a whole.

In relation to the public health risks from exposure to coronavirus, these same principles have been used and we can take account of an individual’s susceptibility when we intervene on site. Our guidance supports escalating our response if we discover clinically extremely vulnerable individuals in situations with inadequate controls.

Review process

As part of HSE’s pandemic response, our senior regulatory managers have kept HSE’s enforcement approach under review as the pandemic progressed. In November 2020, they carried out a formal review which concluded that HSE’s regulatory decision making remained proportionate and that the most credible ill-health outcome from contracting COVID-19 in the working-age population was a significant health effect (as defined in EMM terms).

A further review was carried out in April 2021. The review concentrated on the risk associated with exposure to coronavirus in the public health context in a workplace setting. Risks arising from deliberate work with coronavirus, for example in laboratories, to which the Control of Substances Hazardous to Health (COSHH) Regulations 2002 apply, were not included.

As part of this review, HSE’s Science Division answered a series of questions based on the most relevant, current scientific evidence available. This allowed for the development of a factual report to assist senior regulatory managers in answering some key questions.

The factual report was based on:

  • scientific information and evidence from published research, reports and papers
  • relevant HSE and externally produced guidance
  • a review of information and intelligence about enforcement decision making in the pandemic by HSE and some local authorities (LAs)

Outcome of the April 2021 review

Questions posed to HSE’s senior regulatory managers, their answers and their key reasoning (including the evidence considered) are detailed below.

Does the EMM consequence category of ‘significant’ remain an appropriate guide to regulatory decision making when enforcing the public health risk in the workplace during the pandemic?

The EMM consequence descriptor of ‘significant’ remains an appropriate guide to regulatory decision making when enforcing the public health risk in the workplace during the pandemic. Emerging new evidence will continue to be monitored.

  • The consequence category is based on the most credible health outcome for the whole working population not individual susceptibility
  • COVID-19 leads to a range of ill-health outcomes, from having no symptoms at all (asymptomatic), through to the most serious being death. It was recognised that all such ill-health outcomes are possible and therefore credible
  • It was noted that the descriptors of possible ill-health outcomes used in the EMM (serious, significant and minor) are not directly comparable with national statistical sources. So reliance was placed on other useful indicators of severity outcomes – hospitalisation, symptoms for 12 weeks or more, symptoms for 5-12 weeks and symptoms for less than 5 weeks
  • Current evidence about outcomes suggests that a majority (just under 80%) of those testing positive for COVID-19 in the working-age population experienced no symptoms or recovered within 5 weeks. Conversely, 0.04% have died who have tested positive, and a further 0.12% have received hospital treatment. The remaining 20% experienced symptoms for 5 weeks or more
  • Mortality rates were reviewed and showed that the working-age population had a much lower death rate than those aged over 65 years
  • Evidence on long COVID was examined carefully. It was recognised that:
    • the evidence available to date has a number of limitations
    • this is an emerging area
    • it does suggest that the consequences of COVID-19 can be longer-term in an appreciable proportion of individuals
    • there is potential to be associated with more permanent categories of disease in some cases.
  • At this stage there is no evidence to suggest that such outcomes would affect the majority of individuals infected who recover within 5 weeks or who experience no symptoms, which is most of the working population
  • For these reasons, the senior regulatory managers agreed that the EMM consequence category of ‘significant’ remains an appropriate guide to regulatory decision making, although evidence should continue to be monitored

Given the evidence, should any changes be made to the ‘likelihood’ of exposure to coronavirus in EMM terms when enforcing the public health risk in the workplace during the pandemic?

The senior regulatory managers agreed that there should be no change to the existing approach to ‘likelihood’.

This treats the benchmark as ‘remote,’ moving to ‘possible’ or ‘probable’ if there are absent or inadequate controls. Any attempt to fully quantify or isolate the effect of new variants on overall infection or mortality rates is ineffective, due to confounding factors. There was recognition that the vaccination programme is reducing likelihood, although it is too early to make changes on this basis at present.

Given the latest government guidance on controlling the risk of transmission of coronavirus in the workplace, is there a need to change the authority of the guidance in EMM terms (eg interpretive, established) when enforcing the public health risk in the pandemic?

The senior regulatory managers agreed that the authority of the guidance should now be considered in totality as ‘established’. However, some of the published guidance on standards may still be interpretive, for example ventilation.

The general principles of social distancing, hygiene and fresh air are now widely understood and applied in practice. It was recognised that for the detail of some of these principles, standards may still be interpretive (eg specific requirements relating to ventilation). Significant changes to the main principles, such as hygiene, may prompt further review.

Given the evidence presented has the approach to enforcement of the public health risk in the workplace under the current classification of ‘significant’ been proportionate?

On the evidence presented, the senior regulatory managers agreed that the application of the EMM has facilitated a proportionate enforcement approach during the pandemic.

Evidence from relevant peer review assurance exercises and discussions with inspectors and principal inspectors was reviewed. The body of evidence behind this, including shared views and experiences of inspectors, provided confidence that the current application of EMM has facilitated a proportionate enforcement approach.

Our approach

Use of the term ‘significant’, when applying the EMM, reflects the current evidence that 80% of those of working age who test positive for COVID-19 are either asymptomatic or recover fully within 5 weeks or less.

Although some individuals do take longer to recover or may even die from COVID-19, the current scientific evidence supports ‘significant’ as the proportionate approach. HSE continues to treat the virus seriously and we remain determined to help control transmission in the workplace to avoid deaths, long-term illness and absenteeism.

We will continue to monitor the situation, when necessary, until the public threat of coronavirus is deemed no longer a matter for health and safety regulation.

This page is reviewed regularly and updated to reflect any changes in the guidance.

Page last reviewed: 30 September 2021

Next review due: 31 October 2021

 
2021-09-01