Coronavirus: FAQ for the sports sector - in depth - Gateley
In depth

Coronavirus: FAQ for the sports sector

Gateley Legal

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The Government has released 8 sector specific guidance documents, although its Guidance in connection with sport has to date been limited to outdoor sports facility providers, and this can be found via the link here

Together with the existing sector Guidance, sport providers and sporting bodies can utilise the available guidance to consider how they can get ready for a return to sport provision.  The Regulatory and Employment teams have pulled together a list of questions and answers relevant to the sports sector and which may help guide your organisation as it re-emerges from full lockdown. 

This guidance is aimed at your employees and also members and guests at your sporting facility. We are hoping to do a live webinar on this topic soon. 

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Your Questions Answered

  1. If we are opening outdoor sporting facilities, do we need to carry out a specific Covid-19 risk assessment?

    Current Government guidance is that ‘ideally’ there should be an action plan for re-opening outdoor sports facilities and that this should be published. An action plan should include all of the steps being taken to make your facility COVID safe for guests and employees.

    An action plan should give consideration to the control measures detailed in question 2.

    As an employer, The Management of Health & Safety at Work Regulations 1999 encapsulate (amongst other things) the duties to carry out a risk assessment of all activities and to keep such assessments under review. If you have fewer than 5 employees there is no legal requirement for this to be in writing however we would still recommend it is documented.

    Within each of the eight sector guidance notes produced by the Government this month, the central foundation of all of the remergence strategies is that a workplace should be Covid-19 safe and that a Covid risk assessment should be carried out before any employees return to work. You should also update all other risk assessments that are already in place within the business (as appropriate) to enable the business to continue operating safely. The HSE and local authorities, as regulators, can spot check companies and act on disclosure of risk assessments. If an investigation takes place, it will be the business and all of its directors, officers and managers who would potentially be liable for criminal offences if the workplace is deemed to be an unsafe place to work.

    The HSE website contains very helpful risk assessment templates. The Government has stated that it expects all businesses with over 50 employees to publish the results of their risk assessment on their websites. 
     
  2.  If my outdoor sports facilities are open what control measures do I need to put in place? 

    The control measures that you put in place are what should be included in your action plan, we recommend giving consideration to the following:

    Social distancing
    This is a key requirement in the Government guidance and should be practiced within the working environment where possible. In an office environment, this may mean moving desks to allow a two-metre gap between workstations. If this is not possible the use of screens between workstations should be considered, as well as staggered working hours and staggered breaks.

    Social distancing also applies to guests and members participating in the sports. Signs and posters should be displayed giving information about this. 

    Welfare facilities
    There should be welfare facilities or cleaning stations available for employees and members/guests allowing frequent hand washing or hand sanitising.  Guidance is being published that an hourly hand washing regime is good practice. If hand sanitiser can be provided at stops throughout a golf course or next to outdoor courts that is recommended.

    Shared/communal areas
    There should be no gatherings in shared space unless socially distanced. Cafes, kitchens, coffee stations and vending machines should remain closed, but employees will need to have hot and cold running water and toilet facilities provided and in use. Members and Guests should be encouraged to bring their own refreshments, although take away facilities can be provided.

    Cleaning regime
    There should be a strict cleaning regime in place which includes a daily deep clean if possible. No equipment should be shared by employees if possible. Cleaning needs to address all areas especially high contact areas such as door handles and equipment drop off areas.

    Access
    Consideration should be given to eliminate the need for touch buttons or buzzers to be used. Hand sanitisation on entry and exit is recommended. 

    Car parking
    If public transport is to be avoided consideration should be given for car parking for employees, members and guests if possible or other alternative travel arrangements. Staggering work times may assist with travel issues. 
     
  3. How do I limit the risk to my staff in public facing roles?

    The duty to safeguard the health, safety and welfare of employees within the workplace extends to third parties and contractors under the Health and Safety at Work Act. A Covid-19 risk assessment should be conducted for any third parties, contractors, customers or service users who may be coming into your work environment and the relevant safe systems of work put in place, as well as for all your employees.

    If your employees are in a customer facing role and there are customers entering the building then social distancing should be considered along with the use of screens, markings and potential use of PPE (if it is available and your risk assessment indicates that it would be a suitable measure).

    Likewise, If your business uses turnstiles, touch screens or equipment of this type, a suitable and sufficient control measure will need to be considered: for example, floor or wall markings at 2m intervals, provision of hand sanitisers at entrances/exits, frequently touched areas and shared resources should be cleaned or disabled, one-way systems to traverse around the buildings can also be considered, and use of lifts also needs to be managed. 
     
  4. Do I need to consult with employees or employee representatives about the safety measures we are implementing on the return to work?

    The Government guidance states that employers must consult with the health and safety representative selected by a recognised trade union or (if there isn’t one) a representative chosen by workers.

    Legally, employers already have a duty to consult with recognised unions about health and safety matters. In terms of non-unionised businesses, the Health and Safety (Consultation with Employees) Regulations 1996 apply. These state that health and safety representatives should be elected by the workforce but if there is no such representative, employers are required to consult with the workforce directly. This means that despite what the Government guidance states, employers can legally consult with employees directly if there are no elected representatives in place.

    Consultation is required where there is an introduction of any measure at the workplace which may substantially affect the health and safety of those employees. There are further obligations in respect of ensuring the employees have information and training on the risks they face and the preventive and protective measures to control those risks. The HSE has also produced guidance on consulting with employees about health and safety matters.

    If there is in place a representative body under the Information and Consultation of Employees Regulations 2004 there will need to be full consultation with the representatives relating to the health and safety measures.

    As part of undertaking a Covid-19 risk assessment, it would be good practice in any event to communicate and discuss with your employees in advance the changes you are intending to make so that everyone understands what you are planning to do and why.

    Although there isn’t a specific duty to inform members and guests about the safety measures you may be putting in place, we recommend this and ideally, these measures should be included within your published action plan.
     
  5. Do I need to appoint a specialist third party to undertake the risk assessment before I reopen my sports facility, or can it be done in-house?

    There is no obligation to engage a specialist third party consultant to complete risk assessments. It is perfectly acceptable for risk assessments to be completed in-house and the HSE have useful guidance and templates on their website. Many third-party consultants are offering Covid-19 risk assessments but at a premium cost and it may not be a step your business wants to take at this time.
     
  6. Can health and safety risk assessments be relaxed if there is a reduced workforce? 

    No, all of the duties under the Health & Safety Work Act 1974, together with relevant industry regulations, still apply during this time.  If you have a reduced workforce you are still obliged to consider how your operations are affected and to ensure that staff can still do all the tasks which are expected of them safely – this requires you to consider all elements of your operations and how they might be affected by Covid-19.

    There is also an implied term in every contract of employment that the employer provides a safe place of work. Keeping the safety of the working environment under review will remain a duty for an employer both in terms of employment law and health and safety laws and should not diminish based on a smaller workforce.   
     
  7. Do I need to undertake further risk assessments for employees working from home such as employees taking bookings over the phone or online?

    Most industry guidance recommends that the best way to mitigate any work-related risks from Covid-19 is to enable and support any employees who are able to work from home. They should continue to do so for the time being.

    Where possible, employers ought to identify those activities that can be done from home and consider any necessary risk assessments that may be needed: for example, Display Screen Equipment risk assessment is something which can take place at home and is also recommended. A copy of your existing Display Screen Equipment risk assessment can be sent to your employees so that they can adequately risk assess their home working environment. There will be of course an onus upon the home worker to consider their own health & safety in their own home.

    The Government guidance reminds employers to consider how it is keeping in touch with such workers and provide support on mental health and wellbeing. The ICO has also published useful guidance relating to the security of data whilst home -working. 
     
  8. What are my obligations in terms of an employee’s travel arrangements?

    If the employees are in office-based roles and can work from home, they should continue to do so, this could include your bookings team. The updated guidance from the government is that for those who need to travel, everyone should continue to avoid public transport where possible. If they can, they should walk, cycle or use their own private vehicle. Employers should consider whether additional parking can be made available. Staggering working hours will also help avoid peak times and overcrowding on public transport. There is no obligation to pay for the costs of an employee commuting to work.

    Travel to and from work by employees is not governed by health and safety law unless that travel is part of an employee’s role such as travelling to a different site or to a meeting. The HSE is, however, encouraging employers to consider employee travel arrangements as part of their return to work planning, and many businesses are looking at how they can assist their employees in this regard.

    At the moment the Government hasn’t published anything specifically relating to members or guests travelling to outdoor sporting facilities other than public transport being avoided.   
     
  9. What PPE equipment, if any, do I need to provide to staff?

    If PPE was used for the work activity before the pandemic, then this should continue to be used. A risk assessment should be carried out to assess what PPE should be worn to reduce the risk including face masks and single use gloves. We cannot envisage any such PPE being needed in outdoor sporting facilities as socially distancing should be able to be practised. This would include umpires and referees etc being able to properly socially distance.
     
  10.  Where can employees safely take breaks?

    Ideally in outdoor areas which are well ventilated. Communal areas should not be used unless absolutely necessary and a two-meter distance can be observed. 

    If the communal areas are not large enough, strict guidelines need to be in place, for example, only one person can enter the area at one time. Ideally, equipment should not be shared, including access to hot and cold water and toilet facilities, and should be cleaned more regularly.

    Consideration should be given as to whether additional staff areas outside or in other well-ventilated rooms could be used in order to minimise the amount of people gathered in one place. Break times should also be staggered to manage social distancing.

    Consideration should be given as to whether it would be reasonable to prevent employees going off-site during breaks and lunchtime. The employer should consider factors such as the need for employees to buy food and run errands.

    Ideally, employers should take all reasonable measures necessary to ensure workers understand any new behaviour, processes or working practices that will be required to manage the risk of the virus before returning to work. As good practice it would be sensible to hold drills or provide training sessions in advance of the organisation, or facility, reopening for the first time. 
     
  11. Can we still have work meetings when employees return to work?

    The guidance states workplaces should keep employees socially distanced.  This means two metres apart from each other wherever possible.

    Where social distancing guidelines cannot be followed in relation to any activity, such as meetings, you should consider whether that activity needs to continue for the business to operate. Could team meetings take place via an online resource, such as Zoom or Teams? Time limiting of face to face interactions has also been suggested in the guidance. 
     
  12. What should we do in relation to those employees or customers/members considered ‘vulnerable’, including those with pre-existing health conditions, pregnant women and the over 70s?

    Whilst the ‘clinically extremely vulnerable’ have been advised to remain indoors for at least 12 weeks, this wider group identified as ‘vulnerable’ may continue to travel to work, work and exercise by themselves or with others from the same household as long as this number doesn’t exceed 6.

    Employees should be offered the safest available on-site roles which enable social distancing measures to be observed. If the role involves working within two metres of others, the employer needs to assess whether the level of risk is acceptable. If the risk of infection is too high, the individual should not be asked to return to the workplace. Again, alternative arrangements need to be considered such as furlough, taking holiday or unpaid leave.

    Government advice is that generally, pregnant women do not appear to be more likely to be seriously unwell than other healthy adults if they develop coronavirus at least not before their third trimester - after 28 weeks.

    It will be important that “particular care” is taken to ensure that all pregnant employees are able to adhere to social distancing measures if required to attend work. This will need to be addressed in a health and safety risk assessment for the workplace.

    If risks cannot be removed the employee may need to be suspended on full pay during her pregnancy.

    In relation to the wider category of employees with underlying health conditions they will meet the definition of being ‘disabled’ under the Equality Act 2010 if they have a long-term condition that has a substantial impact on their ability to carry out day to day activities. Consideration would need to be given to making reasonable adjustments if the employee was at a disadvantage due to their disability which may include restricting some duties. Taking action against a disabled employee who refuses to carry out work due to concerns relating to coronavirus and their disability could also amount to discrimination arising as a consequence of their disability unless justification could be shown.

    Further, forcing an employee to attend work in this situation could give rise to a claim for constructive dismissal if the employee resigns in response. If they are dismissed for refusing to come into work, they could have a claim for automatic unfair dismissal. 
     
  13. What should I do if an employee is concerned about returning to work because they live with a vulnerable person?

    The Government’s shielding guidance states that people who are living with those who are shielding should do what they can to support them in shielding and to carefully follow guidance on social distancing. Although it does not expressly require someone in this situation to stop working it is expected that employers will react to such concerns with sensitivity.

    If homeworking, or redeployment into a role that is suitable for homeworking, can be arranged then this is likely to be the obvious solution. For those whose facilities involve roles that can be undertaken in isolation, outdoors, or in well ventilated areas, this too could be an alternative to allow those who live with vulnerable persons to return to work more safely. 

    If not, the employee’s reasons for being reluctant to attend work should be carefully considered in case there are any discrimination issues.  Reassurances should be given as to the safety measures that have been put into place. If the employee is still reluctant unpaid leave may be agreed or it may be possible to furlough the individual. As a last resort if public health advice is that the employee could be reasonably asked to attend work, it may be that this is a misconduct issue and non-attendance at work may amount to unauthorised absence. There is a risk though that any such action will lead to claims based on the employee’s right to raise issues relating to health and safety.

    There are laws to prevent associative discrimination where an employee is associated with someone who has a disability. Although these laws do not require an employer to make reasonable adjustments for the employee (as they do not have a disability themselves), the employee is still protected from direct discrimination, harassment and victimisation resulting from their association with a disabled person. As such, employers should take steps to ensure that employees do not suffer repercussions due to their association with a vulnerable person.  
     
     
  14. How should I manage employees who have difficulty working because of childcare issues?

    Whilst schools and nurseries remain closed for certain school years, other than to children of key workers, employees with childcare commitments may need some flexibility in relation to working arrangements. You should aim where possible to reach agreement with the employee as to how they will carry out their duties.  Homeworking should be considered where possible with reduced or flexible hours.

    If homeworking is not possible you may allow the employee to remain furloughed as the reason for the childcare issue is related to Coronavirus.

    At the end of the furlough period if there are still childcare issues the employee may be entitled to take time off work to care for their child. There is a statutory right to unpaid time off for dependants which would be likely to apply where an employee is dealing with an emergency in relation to their childcare. Longer term the employee could also use their right to take unpaid parental leave. The statutory right is for up to 18 weeks unpaid leave to care for a child under 18. In default the maximum period per year is 4 weeks but agreement may be reached to extend this. Alternatively, an agreement can be made to allow unpaid leave for a certain period of time or of course the employee may use their annual leave entitlement. Employers should be particularly mindful of potential claims for indirect sex discrimination when dealing with requests for flexibility for childcare reasons. 
     
  15. What do I need to do if one of my employees or members/guests contracts Covid-19 or has symptoms?

    An employer has a duty of care for the health and safety of all their staff and employees.

    It should be made clear to all employees that if they have symptoms they should report this immediately. The employee should be sent home from work straight away and told to self-isolate in line with the current Government guidance. The employee will be entitled to statutory sick pay (and potentially company sick pay depending on the terms of the scheme).

    In a non-healthcare setting, there is no mandatory requirement to close the workplace if someone has contracted Covid-19. Thorough cleaning of the premises with appropriate PPE worn should take place before employees and customers are able to reenter the premises. Any closure should therefore be minimal.

    Exposure to other employees should be considered and any employee who has been in close proximity to the employee with Covid-19 could be asked to self-isolate at home.  If an employer sends employees home to self-isolate, they should be expected to continue working remotely from home where possible.

    If home working is not possible, it is likely in most cases that the employee would be entitled to full pay (unless the contract provides otherwise).  Withholding pay may also discourage employees from identifying a risk that they may have been infected and lead toan increased risk of infection in the workplace. An employee in these circumstances will not be entitled to SSP.   
     
  16. Can I tell other employees if a staff member is unwell with Covid-19 symptoms?

    There is ICO guidance on this “Data protection and coronavirus - what you need to know”. The ICO’s view is that, yes, you should keep staff informed about cases in your organisation. However, you should only provide information that is “necessary” to preserve health and safety. In most cases it will not be necessary to name the individual, unless it is needed for tracing purposes.

    It is vital that communications should be kept clear and up to date not only to reinforce the new procedures in place but also to inform of changes to staffing, processes, new Government guidance or indeed the levels of risk related to Covid-19. Such communications should not unnecessarily identify specific workers, but it would be appropriate to inform staff and prevent speculation
     
  17. What is the overall risk to directors and officers should an employee allege s/he contracted Covid-19 whilst at work or worst-case scenario, if an employee dies of Covid-19 and has been at work?

    This is an extremely difficult question to answer as the worst-case scenarios may result in an investigation and prosecution for Gross Negligence Manslaughter against an individual director or officer, or a Corporate Manslaughter investigation against the business.

    For any criminal prosecution relating to COVID-19 to be successful, causation will have to be proven. In reality this presents a difficult problem for regulators. For example, it is currently believed that Covid-19 can stay on surfaces for 3 days and, for instance, it is possible people can contract it if they handle post coming through their door or if they are in a supermarket and someone in the next aisle sneezes etc. Therefore, demonstrating the contraction of the virus was work related may not be straight forward.

    However, there is still a legal duty (in certain circumstances) on employers to report COVID-19 deaths to the HSE under the RIDDOR scheme.

    The current HSE guidance states:

    You should only make a report under RIDDOR when one of the following circumstances applies:

    - an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be    reported as a dangerous occurrence  

    - a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease  

    - a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent

    Notwithstanding the above; we anticipate that the HSE will only proceed with full investigations and/or prosecutions if businesses have clearly ignored all government guidance. If a business is shown to have made no effort whatsoever to make its workplace safe, putting employees at risk: Then it is far more likely the HSE will intervene.

    This is why it is crucial to ensure that risk assessments and new systems are conducted, documented and trained out to employees prior to your business re-opening.  
     
  18. Can I ask employees to use holiday as part of a phased return to work?

    Yes, it is possible to do this. The contract of employment or holiday policy may provide that notice can be given to require employees to take annual leave. In the absence of any such contractual provision the default position under the Working Time Regulations 1998 is that an employer may require employees to take annual leave by giving twice as much notice as the period of annual leave that is required to be taken. For example, if the employee is to take 5 days leave you will need to tell them at least 10 days before.  
     
  19. Do I have to provide welfare facilities such as showers, toilets and changing rooms if I have outdoor sports facilities that can be offered and opened safely?

    Where possible it may be prudent to limit, or indeed prevent access to such facilities.

    Where this is not possible, in order to successfully reopen, then careful consideration of communal areas will need to take place. It is advisable to create a risk assessment which clearly sets out each identifiable risk together with sufficient control measures to mitigate that risk.

    Any areas deemed essential common areas should consider control measures including but not limited to:

    - Frequent cleaning;

    - Limiting the number of persons that can use the common area at any one time;  

    - Limiting the period of time that persons can use the common area;  

    - Social distancing whilst using the common area;  

    - Suitable hygiene facilities for washing including additional handwashing and/or hand sanitising facilities where permissible;  

    - Frequent cleaning of all surfaces that are touched regularly (for exampled door handles, light switches, lockers etc.); 

    - Replacing hand dryers with paper towels where possible;  Shared equipment to be cleaned after each use etc.
     
  20. What do I do if my members or sports people need to hire equipment from me?

    If it is not possible for members or customers to bring their own equipment, a risk assessment on the safe use and cleaning of hire equipment should be conducted.

    It is recommended that each piece of equipment is thoroughly cleaned after each use and that training in this new process should be given to employees before reopening. It is advisable to clearly display signs indicating that equipment is thoroughly cleaned for peace of mind. 
     
  21. What is your advice regarding sharing sports equipment?

    Prior to reopening any equipment and/or machinery that has been dormant, ought to be tried and tested, to ensure it is fully operational before reopening.

    Any shared materials, equipment or other objects that will be entering (or being used) at the facility should be cleaned to reduce the transmission of Covid-19 from contaminated surfaces.

    Shared equipment should be cleaned thoroughly after each use. Any work vehicles or common equipment used at your facility should also be cleaned thoroughly after each use. Where possible additional hand washing and/or hand sanitising facilities should be made available throughout your facility where people are using shared equipment.

    The best control measure would be to avoid sharing sports equipment where possible.
     
  22. Do I have to marshal outdoor sporting activities and check that social distancing measures are being adhered to?

    There is no obligation to marshal your facilities to ensure that members and guests are adhering to all of the control measures in your action plan but it would be good practice to check to see if your action plan is working and to keep records of these checks. Any concerns you have can be recorded and may lead to you updating your action plan.
     
  23. Do I have to provide canteens, water fountains or vending machines around my outdoor sporting facilities?

    Government guidance is that canteens should remain closed. Water fountains pose a high risk as do vending machines as they are frequent touch surfaces. We recommend that they all remain out of use and closed off to members and guests and that instead members and guests are encouraged to bring their own food and drink: signage can be put up to communicate this and this can also be included in your action plan.
     
  24. What do I do if one of my members or participants want to lodge a complaint about not feeling safe?

    You should have a complaint procedure to allow members and guests to report any complaints or concerns they may have. This procedure should be included in your action plan and communicated out.

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