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The Coronavirus - advice from a health and safety lawyer

  • United Kingdom
  • Health and safety

20-03-2020

Amidst the attention grabbing hysteria of Coronavirus headlines, some commentators have speculated that employers may be about to face prosecution if they don’t take all precautions possible to protect staff and third parties from infection.

It is, of course, correct that employers in the UK owe duties under the Health and Safety at Work etc. Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees; such duties extending to the provision of a safe working environment to those affected and not to expose third parties to risk.

The reality of these unprecedented times is, however, that enforcement of such legislation in this context is a very unlikely outcome. The HSE is involved in trying to help co-ordinate the government’s response to the global pandemic; individual Covid 19 cases are not RIDDOR reportable so would not fall for investigation and it would be near impossible to prove that an individual contracted the disease from exposure at their place of work. In this context, the regulatory framework should be seen as an enabler to assisting duty holders with the tools to ‘do the right thing’ by those they affect rather than as a stick to ensure measures are taken. In many ways, business is expected to ‘do the right thing’ rather than take measures out of fear.

The modern day health and safety professional is used to dealing with foreseeable risk as a function of the job. The tools of risk assessment, often deployed by facilities managers to prevent exposure to noxious substances and control legionella bacteria, are equally appropriate for deployment in this context. Just as measures are taken to prevent contaminants from spreading, risk assessments should consider mitigation measures such as hand gel, remote working and reducing or eliminated non-essential travel. Government guidance is fluid and swiftly changing; there is a need to closely monitor the situation to stay current with any measures necessary.

Some employers are asking all visitors to self-declare any exposure or recent visit to severely affected nations. Rather like asking employees to self-declare that their grey fleet vehicle has a valid MOT or that they have valid business insurance, such measures have limited legal value but do serve as a challenge to all visitors to think about their personal situation and so have some limited benefit.

The law does require some groups to have specific risk assessments : young persons and pregnant women are specifically safeguarded; whilst there is no specific protection for those with a disability, sensible risk management means that individual risk assessments should be carried out for those who have a self-declared health condition which could increase their risk profile. Home working may be recommended in some circumstances for such staff.

In the face of the pandemic, many employers are reminding staff and contractors to tell them about any specific individual medical advice which could affect the assessment. Duty holders will use this information to review their risk assessment and if necessary to adjust your working conditions accordingly. Employees can ask to see the outcome of the risk assessment and the employer must show it to the individual.

Eversheds Sutherland is advising organisations around the world on their response to Coronavirus : from force majeure to travel policies. Our free advice hub is here.