Opinions and insights from Roythornes' employment team.
Coronavirus and your new starters - guidance for farm businesses
- AuthorPhil Cookson
In this article we look at best practice for farmer and grower employers taking on new workers for picking and packing fruit and field crops.
With scores of workers due to arrive on farms over the next few weeks, the impacts of the coronavirus pandemic will be felt by employers and workers alike. We have been impressed by how employers are adjusting their systems and seeking to operate in line with official guidance in order to ensure that, as far as practicable, workers are kept safe while essential harvesting operations continue.
The AHDB has produced a very useful guide on best practices to avoid the spread of coronavirus on fruit and vegetable farms, in collaboration with the NFU, The Association of Labour Providers, G’s Fresh and Defra. Our Q&A builds on this by focussing on new starter processes and how employers can manage these in line with official guidance and their statutory duties.
How is my general duty of care as an employer changed by coronavirus?
Your duty of care has not changed. You still need to ensure, so far as practicable, the health, safety and welfare at work of your employees. The “so far as practicable” is important; the Government wants food producers to continue producing and recognises that there will be limits to what is achievable e.g. in terms of social distancing when it comes to managing harvesting rigs, transport to site and on-site worker accommodation.
But there is more to your employer responsibilities than managing distancing; in the face of a highly contagious virus and Government regulation/official guidance you will need to have new policies, induction and management practices in place to ensure that you are fulfilling your obligations to your workers, those already in place and your new recruits.
Do I need to revisit my risk assessment?
Yes. You have a statutory duty to ‘make a suitable and sufficient’ assessment of the risks to the health and safety of your employees to which they are exposed while at work. The coronavirus pandemic is an exceptional event and impacts significantly on those risks. Carrying out a risk assessment will inform the kinds of changes you make to your working practices, recruitment and policies. Your revised health and safety policy and new starter checks/induction will then follow the outcome of the risk assessment.
What questions should I ask new recruits?
The pressures of getting crops picked and packed may make it tempting to take ‘all-comers’ without the checks you would normally make in a less frenetic period. But it is vital that your starter processes are thorough and reflect the risks identified in your risk assessment. An obvious example would be that no new recruit showing coronavirus symptoms should be allowed to work; they should be instructed to arrange a test and given the necessary time off work.
In terms of your day-one checks, the points below may be useful.
- Your usual new starter health questionnaire/checklist should be amended to include at least two new questions: (1) Are you displaying any symptoms of coronavirus (a high temperature or a new continuous cough)? (2) Is somebody in your household displaying symptoms? If the answer to either question is yes, then you must not allow the worker to work; he or she must self-isolate and should be instructed/assisted to apply for a test. (We understand that actually getting a test may not be a straightforward requirement due to under-capacity/distance to testing centres etc., but it should become easier as capacity is gradually increased.)
- Your health and safety policy (or the clearly marked coronavirus section) should require workers to provide any test results to you so that you can be confident that they are virus-free before starting work again. (You will also need to be confident that anyone sharing accommodation with them has also tested negative but that is not an obligation you can place on a worker in relation to those sharing accommodation with them.)
- Your amended policy should also require any worker to let you/their team leader know immediately if they start to display symptoms of the virus. It should also say that workers must agree to use their reasonable endeavours to get a virus test if requested.
- Your first day induction should cover all your coronavirus protective measures and where additional guidance can be found or sought. Specific guidance (and your health and safety policy) should be provided in the worker’s language.
- New recruits should be asked to sign a copy of your health and safety policy to show (a) that they have understood it, and (b) that they will comply with it.
If a new worker arrives on day one with symptoms, can we simply not take him or her on?
No. You have already entered into an employment contract with your worker (otherwise you would not be doing a first day induction/check with them). You risk a claim for automatic unfair dismissal or more if you end their employment. They are entitled to statutory sick pay from the first day of their self-isolation.
Should we implement daily coronavirus health checks?
The answer to this will depend on your risk assessment. Generally speaking, the less social distancing your operational arrangements allow, the more closely you will want to monitor possible cases of the virus and have appropriate action measures in place.
There is a sample daily health check form available here on the ALP website (you should probably include a reference to testing in it now that these are available for those showing symptoms). If you do decide that daily health check forms must be completed, that should be made clear in your health and safety policy and on your new starter health check form, with new recruits agreeing to complete them.
Do I have to arrange a test for workers who show symptoms of the virus?
This is up to you, but the testing system is set up for essential workers showing symptoms to apply for a test themselves. Good practice would be for you to give your worker the necessary time off to get tested and to provide information about the self-referral testing portal (the user guide is here).
However, whilst you are not under a duty to arrange a test on a worker’s behalf, you may take the view that it is simpler and more effective if you do, particularly as if one worker has symptoms a number may need testing (those sharing accommodation with him or her) and given that transport to get to a testing centre may be a problem. Once home testing kits are readily available, it may be that – as an employer – you can source these, which would make the whole testing exercise less cumbersome.
If one worker shows symptoms should the workers who share accommodation also be tested?
This would be in line with the Government’s guidance, yes. Workers in shared accommodation are treated as a ‘household’.
Should I ensure all workers, new and existing, have a coronavirus test?
Workers involved in food production are classified as essential workers. But current guidance does not envisage tests for essential workers who are not showing coronavirus symptoms. On that basis it is difficult to see that you are under a duty to have everyone tested as a one-off exercise. It may be that official guidance will change, and blanket testing for essential workers will be made available; at that point you can take a view (and amend your policy and new starter form if need be).
Do I need to insist on workers wearing masks?
This is a difficult one. On the one hand, Public Health England is still not recommending the widespread use of masks outside clinical or care settings. On the other, if full social distancing is not practical on harvest rigs, in shared transport and packing units some employees will clearly feel more protected if team members working in proximity wear masks. However, the use of PPE remains a last resort.
Your decision will depend on the outcome of your risk assessment and, if you do decide to provide masks and require workers to wear them, that should be made clear in your health and safety policy and through the induction process. You will be responsible for providing the masks, and training will have to be provided for all employees in how to use them. You will also need to be mindful of the Personal Protective Equipment Regulations 1992; there is a short HSE guide here.
What about on-site accommodation for new recruits?
This is an area where there will be tension between the ideal and the practicable. So far as possible you should house new recruits separately and in single-occupancy or low-occupancy units. However, that has to be weighed against the recommendation that workers are organised in cohorts who live and work together (where cohorts may, for valid operational reasons, have a mix of new and experienced hands).
What if a member of a team consistently breaches distancing rules?
However vital the worker is, you must take disciplinary action if he or she is putting the health and safety of other workers at risk. Your usual disciplinary policy will come into play, with your health and safety policy providing the basis for action.
Has general employment law changed as it relates to new starters?
Yes it has, and the coronavirus crisis does not excuse you from the need to comply with the new rules.
From 6 April 2020, under the ‘Good Work Plan’:
- All new employees and workers now have a “day-one” right to a new-type section 1 statement of written particulars from their very first day of employment (previously employers had two months to provide this, and to employees only). Lots of additional information must be included in the statement, including terms relating to normal hours of work (what days, whether fixed or varied start and finish times), duration and conditions of probation, eligibility for sick leave/pay, details of non-pay benefits etc.
- All agency workers are entitled to a ‘key facts statement’ showing how much they can expect to be paid gross, what deductions will be made, and how much they are likely to receive net. The idea is that there will be no surprises when they get their pay packet. Additionally, they must be informed of any monetary benefit and annual leave entitlements.
There are, however, two rules which have been relaxed due to the current crisis, relating to ‘Right to work’ checks and National Insurance numbers.
- As of 30 March 2020 the following temporary changes have been made to Right to work checks.-
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
- You can start an employee without them providing a NI number – leave that field blank in your real time information return. This is most likely to be relevant to migrant workers.
- Note: if you are employing furloughed workers, you will need to complete Section C of the online starter checklist for PAYE.
Please note: This is a fast-moving situation. The above guidance is based on the law and official guidance as at 27 April 2020. It is intended as general guidance only. Feel free to contact Phil Cookson or Desley Sherwin with any queries about the issues discussed.
For more information on our employment services visit our employment law page.