In response to COVID-19 Registered Providers are having to revisit their approach to their improvements, repairs and gas servicing programmes. Other than completing jobs that are already underway, many have already put on hold their schedules for property improvements. With repairs, especially urgent ones, and gas servicing obligations though, what considerations should housing providers be taking into account?
Registered Providers need to have regard to:
- their duties under the Health and Safety at Work Act 1974 (HASAW), as amended, and associated legislation to protect the health, safety and welfare at work of their workforce, as well as others who may be affected by their operations.
- their common law duty to take reasonable care for the health and safety of their workforce.
- the express and implied terms of contracts of employment and other contracts for the personal performance of work or services, including the implied duty of trust and confidence.
- the duty under the Equality Act 2010 not to discriminate against employees/workers with protected characteristics.
- the duty under the Equality Act on employers to make reasonable adjustments for the disabled.
- consideration of the above on Gas safety Regulations.
PHE guidance on self-isolation is currently still advisory rather than mandatory. However, in view of their legal obligations to protect the health of their workforce, RPs would be well advised to introduce rules, or issue instructions, making it clear that that any employee falling within one of the groups advised by PHE to self-isolate should refrain from attending work. In the highly unusual circumstances of the outbreak of COVID-19 the implied duty of trust and confidence is likely to be regarded as giving an employer the right to issue an instruction to that effect and instruct them to not be at their place of work. An employee who refuses to comply with a reasonable instruction to remain at home would breach their own duty of trust and confidence and their personal duty under HASAW to take care of their own health and safety and the health and safety of others who may be affected by their actions at work.
If the employee does not wish to attend work and is not in one of the groups PHE says should self-isolate, then RPs should listen to the concerns of the employee. The WHO has advised that people over the age of 60, or those who have an underlying condition such as cardiovascular disease, a respiratory condition or diabetes, have a higher risk of developing severe COVID-19 and should therefore try to avoid crowded areas or places where they might interact with people who are sick.
RPs should especially consider the needs of any employees who may have particular cause for concern about the risk of infection, such as pregnant women and those with compromised immunity. RPs should carefully consider their concerns in the light of its obligations to take reasonable steps to provide a safe working environment.
If an employee has a disability within the meaning of the Equality Act 2010 which results in a compromised immune system or a higher risk of developing severe COVID-19, then RPs may have a legal duty under the Equality Act to make reasonable adjustments to the employee’s working arrangements.
It is not hard to imagine situations where an employee says they are unwilling to attend a property to carry out maintenance work because of poor hygiene and they fear they are placed at increased risk. In such situations, the employer will need to consider the employee’s concerns very carefully before deciding how to respond.
In addition, in some cases the anxiety caused by the outbreak of COVID-19 will itself render the employee unfit to work and entitled to sick pay.
RPs have a duty to protect staff and workforce and therefore, due to the WHO status of COVID-19 and PHE guidance, it would be reasonable and necessary to delay any repair/service until the self-isolation period has passed. This would include any routine repair or planned repair. If emergency repairs are required and the property is deemed unsafe due to the emergency repair, RPs should liaise with PHE and the resident’s medical team who may elect to remove the self-isolation resident to a hospital for example to remove from the risk of the property. If a resident is self-isolating then all repair including emergency repairs would have to wait until the period had passed.
With regard to compliance and gas safety, RPs should keep full records of their attempts to gain access to demonstrate an audit trail to the regulator.