Work in the time of Covid - an overview of potential EL liability in a pandemic

• United Kingdom

• Personal injury claims litigation - Claims e-briefing

07-05-2020

UK goes into ‘Lockdown’

The current lockdown arises as a result of The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. Broadly, this legislation restricts the movement of people to ‘essential journeys’ only and has made it unlawful for certain types of business, such as hair dressers, clothes shops, cinemas and sports centres (as set out in schedule 2 of the legislation) to remain open.

This article has been written in light of the current government guidance in respect of the lockdown. However, it is anticipated that these measures will be relaxed in the following months, allowing workers to return to the workplace to some degree. We anticipate advice provided here in relation to an employer’s duty of care, the risk assessments which need to be undertaken and the risks of being party to a civil claim will remain relevant.

As it stands ‘essential journeys’ do include, travel to and from work, providing that the business does not fall within the category of businesses which have had to close and that the work cannot reasonably be carried out from home:

“6.(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;”

It is notable that the business itself does not have to be “essential” to fulfil these criteria.

The key questions we will be answering are:

• What should I be doing to look after my staff in the face of a pandemic?
• What sort of risk assessments should I prepare?
• If a member of my staff gets Covid-19 do I need to report this under RIDDOR?
• Is there ‘reasonable evidence’ that COVID-19 was contracted at work?
• Could I end up with an injury claim if a member of my staff gets Covid-19?
• What evidence should I look to collate?
• What kinds of claims can I expect and what damages could they attract?
• Will my insurer indemnify claims for Covid-19?
• What happens next?

What should I be doing to look after my staff in the face of a pandemic?

At common law, employers have a responsibility to take reasonable steps to keep staff reasonably safe. This duty underpins any specific statutory duties. Whilst the Covid-19 crisis may present a unique challenge to an employer’s duty of care, it does not remove, or fundamentally alter it.

Therefore those employers whose businesses can remain open need to operate in a fashion which enables them to keep staff and the public reasonably safe from the risks that Covid-19 poses.

The Government released a ‘Guidance for Employers and Businesses on Coronavirus (COVID-19)’ on 07 April 2020. In accordance with this guidance, the majority of businesses will be expected, at a minimum, to implement (and enforce) the following steps:

• remind staff and/or customers to follow social distancing advice and wash their hands regularly
• encourage the use of digital and remote transfers of material where possible
• provide additional handwashing
• use floor markings to assist in maintaining 2m social distancing
• where it is not possible to remain 2 metres apart, staff should work side by side, or facing away from each other, rather than face to face if possible
• where face-to-face contact is essential, this should be kept to 15 minutes or less wherever possible
• as much as possible, keep teams of workers together (cohorting), and keep teams as small as possible.

This guidance covers England only, different measures are being enforced in Scotland, Wales and Northern Ireland.

If an employer can implement and maintain these measure then they will stand a good chance of establishing that they have discharged their duty of care to their staff.

There is also additional government guidance for specific industries.

Courts are unlikely to have any sympathy for employers who seek to argue that they are unaware of their duties. Failure to consistently implement these measures is likely to result in a breach of duty to staff and in some circumstances, members of the public too.

It should also be born in mind that employers are also responsible for the negligent acts of their staff. This would include a member of staff who breaches the protective processes that have been put in place.

What sort of risk assessments should I prepare?

Employers should risk assess all aspects of their business and modify the working environment to fit within the guidance. Remember that the overarching duty is to reduce any risk to the lowest level practicable.

The law does require some groups to have specific risk assessments: young persons and pregnant women are specifically safeguarded; whilst there is no explicit 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.

Many employers are reminding staff and contractors to provide information about individual medical conditions which could affect the assessment. Duty holders  will use this information to review their risk assessment and if necessary to adjust working conditions accordingly. Employees can ask to see the outcome of the risk assessment and this should be produced.

If employers are unable to introduce and, just as importantly, maintain, working practices that comply with the guidance, then consideration should be given as to whether to close the business until the restrictions are reduced.

It goes without saying that the risk assessment process should be carefully recorded and the documents retained safely. More detail recorded at this stage will make matters easier if decisions made now have to be defended in a few years’ time.

But remember that the most thorough risk assessment is of absolutely no use if it is not consistently enforced.

There will, of course, be some situations where a job needs to be done regardless of whether social distancing etc can be maintained - the Police Service and utilities dealing with emergencies spring to mind here but there will be many other examples. Despite this steps should be taken to reduce the risk to the lowest level reasonably practicable. It is difficult to see that the need to make a profit or even to keep a business solvent would amount to a justifiable reason to not comply with the government guidance at the moment.

If a member of my staff gets Covid-19 do I need to report this under RIDDOR?

On 3 April the Health and Safety Executive (HSE) issued guidance on the requirement to report COVID-19 cases under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).

The HSE’s guidance states that you must only report under RIDDOR when: 

1.    an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence (regulation 7, Schedule 2 s10).

2.    a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease. (regulation 9(b).

3.    a worker dies as a result of occupational exposure to coronavirus (regulation 6(2)).

The HSE have provided examples to illustrate when the duty to report arises under the regulations listed above.

Is there ‘reasonable evidence’ that COVID-19 was contracted at work?

The overarching principle of RIDDOR is that deaths, dangerous occurrences, diseases and accidents are only reportable where they “arise out of or in connection with work.” Application of this to COVID-19 cases suggests that the duty to report will only be triggered where there is reasonable evidence that the COVID-19 element is indeed work-related. It follows that it is not necessary for employers to report every suspected case of COVID-19.

As the prevalence of COVID-19 increases in the UK population, it will be challenging for employers to establish whether or not the individual contracted the disease as a result of their work or at any other point in their life outside work. The HSE in their reporting guidance have referred to health and social care workers who through their provision of care and treatment of an individual diagnosed with COVID-19 have subsequently developed the disease.  In these circumstances where there is a diagnosis this will satisfy the requirement of “reasonable evidence” that the exposure arose from the workplace. Additionally, a doctor may indicate the significance of any work-related factors when communicating this diagnosis to an employee.

However, the application of the reporting duties to sectors aside from a healthcare setting is less clear cut.

Where COVID-19 testing is not available or where employers and employees cannot easily distinguish when, where or how individuals might have contracted the disease it will be left to organisations to interpret whether the reasonable evidence criteria has been satisfied. In the majority of cases unless a direct link can be established it is arguable that the reporting obligation would not be triggered. Due to the numbers of Covid-19 cases increasing daily the ability to determine work-related exposure is inevitably problematic.

Could I end up with an injury claim if a member of my staff gets Covid-19?

It is entirely possible that you could be on the receiving end of a personal injury claim.

If an employee contracts Covid-19 and can show that his employer was in breach of his duty of care, the only hurdle to a successful claim will be establishing that the breach of duty caused him to contract the virus.

In contrast to the situation in relation to RIDDOR reporting, it is likely that all an employee will have to show is that the breach created a material increase in the risk that he would catch the virus. This is not a high hurdle to overcome.

What evidence should I look to collate?

What the courts will want to know is:

• what measures were put in place?
• whether those measures were adequate?
• were they were consistently enforced?
• can the work be done at home?
• if not, can the guidelines be complied with and imposed consistently?

Risk assessments need to be enforced and kept under constant review as the situation and Government guidance changes, statements explaining and justifying the risk assessment process and risk control measures put in place will be helpful, along with minutes of meetings documenting health and safety decisions. These are all a good place to start when considering what documents will be needed to defend any claims brought.

Make sure that such documents are kept safely as they may not be needed for some time, and staff come and go and documents are lost or disposed of.

What kinds of claims can I expect and what damages could they attract?

It is important to remember that there remain many unknowns surrounding Covid-19. For instance we do not know if there are any long term residual symptoms which may affect those who have contracted it or how prevalent such long term issues will be within the population.

What we do know is that for some the virus is symptom free, whereas others have suffered symptoms akin to flu which have lasted around two weeks. A large number of people have ended up in intensive care, with unknown recovery periods (best guesses are placed around 18 months) and at the time of writing on 5^th May just under 30,000 fatalities have been reported in the UK alone. The spectrum of symptoms is vast.

That the majority of Covid-19 claims will involve minor symptoms resulting in a few weeks bed rest. These will be akin to minor whiplash or holiday food poisoning claims attracting a few thousand pounds in damages.

Claims attracting greater damages will arise where long recovery periods have prevented a return to work in the previous capacity or at all, resulting in large loss of earnings claims.

There is also considerable potential for damages being increased with claims including allegations of serious PTSD where the physical symptoms have been such that claimants have understandably feared for their lives. Psychological injuries of this type can effect a claimant’s ability to work and care for dependants.

Then at the very top end of the scale, we will inevitably see some high six-figure fatality claims where the deceased had dependants relying on his or her income.

Another category of claim employers should be prepared for are from members of the infected employee’s household. Given how contagious Covid-19 is, it is foreseeable that other members of the same household will also become ill if the virus is brought into the home as a result of an employer’s breach of duty.

Claims where the claimant is completely asymptomatic or feared exposure but did not get sick, should be rejected.

As time goes on and claims start to come through, we will be better placed to understand the way in which claimants are affected by the virus and the heads of loss which are sought as a consequence.

Will my insurer indemnify claims for Covid-19?

Under the Employers’ Liability (Compulsory Insurance) Act 1969, most employers are required by law to insure against liability for injury or disease to their employees arising out of their employment.

Employers’ Liability insurance is designed to cover employers when they breach their duty of care to their staff so there should be no issue with coverage for most situations, but now would be a good time to review the terms of such policies. Any renewal process should be sure to include the possibility of Covid-19 clams

In relation to Public Liability insurance, for which there is no compulsory cover, the terms of these policies may not be wide enough to provide cover for Covid-19 related claims. All PL policies should be checked carefully now and clarification sought where necessary.

Consideration should be given to reporting any employee Covid-19 cases to your insurers, or at the very least, checking if they require you to do so.

What happens next?

We, like everyone else, hope that the measures which have been put into place to keep the public safe will enable the curve to flatten. There is an expectation that in due course the current restrictions will be relaxed and more people will be allowed to return to work.

This does not mean that the guidelines which have been issued by the government will suddenly go away. Whilst it is likely that new guidance will be released shortly which will set out how the country will reverse out of the lockdown, businesses will still need to keep their staff and the public reasonably safe, reducing the risk of anyone contracting Covid-19 in the workplace to the lowest level reasonably practicable. Therefore, as the government guidelines change, the same processes of risk assessing, recording and enforcing will still apply.

Summary

In conclusion:

• Risk assess, record and enforce
• Use the government guidelines as the required standard
• Only allow such work as can be done consistently within the government guidelines
• Do not tolerate non-compliance with them
• Consider whether any case of Covid-19 within the workforce should be reported to RIDDOR
• Risk assess again as the guidelines change
• Check your insurance policies now