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How can operators protect themselves from HSE action over social distancing regulations?

Polish offshore worker Arek Cyman said he was "shocked and annoyed" by the discrimination.
Oil workers.

The debate on how best UK businesses can safely return to work is gathering pace – and volume – with employers now carefully picking through the various advice, regulations and laws put in place by Westminster and Holyrood to counter the impact of Covid-19.

Each sector will have their own specific challenges. The requirements for getting our children back to school while offering full protection to them and hard-pressed teachers and support staff will differ greatly from the many construction companies keen to resume housebuilding and infrastructure projects. The oil and gas sector is no different and operators and service companies across the north-east are fully engaged in addressing important HSE obligations, not least the vexing question of how to meet the guidelines on social distancing.

It is safe to assume there will soon be an increase of regulatory scrutiny surrounding compliance with occupational health and safety rules and offshore companies should document where they cannot meet guidelines on worker social distancing.

The Health and Safety Executive (HSE) combined with the Trades Union Congress (TUC) and Confederation of British Industry (CBI) have stressed that the “health and safety of workers remains paramount” despite the other challenges posed to employers by coronavirus. A separate but almost identical joint statement was issued by the HSE and the Partnership on Health and Safety in Scotland.

The statements made clear that employers that flout guidance on social distancing of workers can expect to be subject to HSE scrutiny. If it comes to the HSE’s attention that employers are not complying with the relevant guidance, including enabling social distancing where it is practical to do so, both statements say “the HSE will consider a range of actions ranging from providing specific advice to employers through to issuing enforcement notices, including prohibition notices”.

The statements are equally applicable to work on offshore platforms as they are to work in food retail outlets and manufacturing plants. They are a timely reminder that health and safety law still fully applies during this public health emergency and that the HSE will continue to carry out its regulatory oversight role and look at how duty holders meet their health and safety obligations.

The HSE will continue to enforce health and safety law and they will do that in the context of the risks presented by Covid-19 and based on their own regulatory capacity. Its stated position is that it will take a flexible and proportionate account of the risks and challenges businesses are faced with from the pandemic.

While the message from the HSE is loud and clear, it is less certain how offshore oil and gas companies can meet their obligations in practice.

From a compliance standpoint, it will come down to an assessment of the risks presented by Covid-19 and appropriate control measures being put in place to deal with those risks if they cannot be avoided. In some cases there simply may not be any way for workers to follow the guidance when undertaking their tasks.

However, the Government guidance has been left open to interpretation. Among other things, it said that employers should wherever possible reduce day-to-day contact between workers as much as possible; encourage employees to work at home; avoid crowding and minimise opportunities for the virus to spread by maintaining a distance of at least two metres (three steps) between individuals, ensure face-to-face contact, where essential, is kept to 15 minutes or less; split workers into teams and have them work different shifts to restrict contact between workers to a smaller group.

The precise scope of “whenever possible” is not clear, and despite industry-specific guidance having been issued for some sectors of the economy, there is no guidance from the UK or Scottish governments to assist offshore oil and gas employers with exactly what social distancing measures are appropriate. It is therefore for each company to assess the risks and put in place appropriate control measures in a way that minimises the risk of infection.

There are particular challenges offshore with the design and construction of the facilities and the nature of the work being carried out. Workers will often be in close proximity to each other on a platform and helicopter flights to and from platforms also present situations where workers will come in close contact with each other.

The HSE has urged employers and employees to get together and discuss their working arrangements, and this should be followed in an offshore context. The importance of the role of behavioural safety cannot be underestimated, in particular engagement with safety groups and the workforce as a whole in securing “buy in” to new working arrangements and making sure that new ways of working are understood and followed.

Assessments should be made as to whether there is any work that could be carried out by employees working from home. That may well be unlikely for the vast majority of offshore roles but nevertheless, an assessment should be carried out to see whether any roles could be carried out remotely using suitable IT and equipment. Those assessments should be reviewed on a regular basis as the capacity for working remotely changes.

The HSE earlier announced a short pause to its offshore oil and gas inspection activities so that duty holders can deal with the immediate pressures they face. It is understood that the HSE is working towards restarting inspections at the beginning of June but that is by no means set in stone. Once those inspection activities start again they will focus on re-prioritising critical activities. It will be interesting to see what the HSE will view as a critical activity in the current climate and it may be a matter for debate.

The HSE has said that it will undertake its functions remotely and that across all industries – not just oil and gas – it will continue to investigate work-related deaths and the most serious major injuries and dangerous occurrences.

In as far as they are able to, the HSE will try to carry out investigations without carrying out site visits and mobilising offshore, but they have made it clear that where they consider it necessary to go offshore to carry out their regulatory function and secure compliance with the law, inspectors will continue to go offshore and follow social distancing guidelines.

The HSE is looking for increased cooperation with companies where they are carrying out investigations remotely. That may well manifest itself in requests for companies to voluntarily provide the HSE with their own incident investigation reports. Such reports may be subject to legal privilege and companies should be very careful about voluntarily providing or agreeing to share their own incident investigation reports without first taking legal advice.

We also expect the HSE to be alive to a potential rise in work-related safety incidents arising from workers being anxious or concerned about the Covid-19 pandemic and the situation at home. Offshore oil and gas companies must take these risks seriously.

Both Oil and Gas UK (OGUK) and Step Change in Safety have produced resources to help employers in offshore oil and gas to manage health and safety issues arising during the pandemic, while Public Health Scotland have also published guidance for the prevention and management of Covid-19 cases on offshore installations.

OGUK has a dedicated Covid-19 page on their website with updates on advice around various topics, while Step Change in Safety has issued a number of short videos for the industry and an information pack with details on what companies should be thinking about in terms of changes to their processes and working practices, as well as on mental health issues.

Willie Park is senior associate and expert in offshore health and safety issues at Pinsent Masons

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