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Coronavirus - Work related deaths - UK

  • United Kingdom
  • Coronavirus
  • Health and safety
  • Litigation and dispute management

27-04-2020

Sarah Valentine Assistant Coroner in Inner South London and Senior Associate at Eversheds Sutherland (International) Limited discusses the duty to report to the Health and Safety Executive (HSE) and the Coroner. She considers what is the reporting threshold and is there a blanket duty to report and investigate or is it on a case by case basis?

The guidance on the implications of COVID-19 continues to be an ever changing picture. On 3 April the HSE issued guidance on the requirement to report COVID-19 cases under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). This change of stance by the HSE has arguably been met with some criticism by organisations who are striving to do their best to create safe systems of work in these challenging unprecedented times. The HSE have now issued further guidance on RIDDOR reporting of COVID-19.

When to report COVID-19 cases

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.

The circumstances where a dangerous occurrence creates exposure is clear and would apply to organisations who operate laboratories where an unintended incident has resulted in exposure of COVID-19 to a workforce. However, the circumstances giving rise to report an occupational exposure to a biological agent are far less clear, leading to confusion as to what is reportable if an employee is diagnosed with COVID-19.

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.

Due to the prevalence of COVID-19 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. Whether or not there is reasonable evidence that a work-related exposure is the likely cause of the disease should be considered on a case by case basis, however the HSE have issued guidance on general principles that can assist in making the judgment. The factors to be taken into account when determining whether there is reasonable evidence linking the nature of the person’s work with an increased risk of becoming exposed to coronavirus are:

1. whether or not the nature of the person’s work activities increased the risk of them becoming exposed to coronavirus;

2. whether or not there was any specific, identifiable incident that led to an increased risk of exposure; and

3. whether or not the person’s work directly brought them into contact with a known coronavirus hazard without effective control measures, as set out in the relevant Public Health England guidance, in place, such as personal protective equipment or social distancing.

These factors are not intended to be an exhaustive list and there may also be cases where a registered medical practitioner has highlighted the significance of work-related factors when communicating a diagnosis of COVID-19. These cases would also be reportable.

In addition, for an occupational exposure to be judged as the likely cause of the disease, it should be more likely than not that the person’s work was the source of the exposure to coronavirus as opposed to general societal exposure. Such cases may not be easily identifiable when COVID-19 is prevalent in the general population.

Further, work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a COVID-19 diagnosis is likely to be attributable to occupational exposure and such cases will not require a report.

Will a report prompt an investigation by the HSE?

Reports of individual occupational exposures outside healthcare settings are unlikely to be subject to an investigation by the HSE. However, if a number of reports are submitted where employees are working similar shifts or in the same area on a site this is likely to attract a regulator’s attention.

Additionally, we may also see the Healthcare Safety Investigation Branch seek to undertake investigations in relation to significant reports of COVID-19 work-related deaths within NHS funded care provisions across England. These investigations would run parallel to any HSE (regulator for nursing or local authority owned adult social care providers), CQC or EHO investigation.

Employers are reminded to review regularly the UK Government and regulators alerts to ensure its risk management systems are compliant and in line with the most up to date guidance and instructions. This will assist in minimising potential exposure and spread of the disease in the workplace.

Is a workplace fatality arising from COVID-19 reportable to the Coroner and will an inquest follow?

Undoubtedly the decision whether to hold an inquest must be case and fact specific. Coroners’ have a duty to consider, under section 1(2) of the Coroners and Justice Act 2009; whether there is a reason to suspect that the death was unnatural.

A death arising from COVID-19 is, without more, a natural cause of death. The fact that a death may have been referred by the HSE following a report under RIDDOR will not itself necessarily mean that an inquest is required. Although, a Coroner will take into account in the decision making process the circumstances surrounding the occupational exposure when determining if further investigations should be undertaken.

It is a novel phase we are entering. Typically work-related deaths investigated by Coroners usually relate to a tragic accident. In the case of COVID-19 the core question Coroners are considering is whether the death was preventable and what measures were put in place by employers to prevent transmission of COVID-19 to protect the workforce.

All referrals will be considered on their individual facts as no guidance is prescriptive. A Coroner in their considerations is likely to consider adherence to PHE and HSE guidance, risk management documentation and the accompanying training and instruction of employees when exercising their judgement and discretion to conduct further investigations and hold an inquest. It is anticipated that the majority of work-related deaths will be subject to preliminary enquiries but it is unclear at this stage if these cases may proceed to an Inquest.

Furthermore, whether a death arising in a healthcare setting will trigger Article 2 (right to life) where there has been a delay in accessing medical treatment or general systematic failings (arguably an obligation by the state or its agents ‘to protect the deceased against a human threat or risk’ akin to that applied to the army) have contributed to a death. The Chief Coroner on 28 April issued further guidance on this topic as to how Coroners should seek to undertake their investigations and the parameters of these investigations. In particular, whether enquiries in relation to the topical issue of the provision of PPE should be explored. The guidance reminds Coroners that “inquests are not the right forum for addressing concerns about high level government or public policy” and “would not be a satisfactory means of deciding whether adequate general policies and arrangements were in place for the provision of PPE to healthcare workers.” Such comments are directed to the healthcare and adult social care sectors where mandatory direction on PPE has been issued. However, the same considerations may apply with regard to the provision of PPE where it has been deemed necessary as a precautionary method for essential workers.

It is too early to determine how Coronial investigations will proceed as the service continues to prioritise the daily death referrals. This is something that is likely to be revisited in further guidance and reviewed if an inquiry is to be scheduled. In the interim Coroners will continue to exercise their discretion and consider each referral on a case by case basis. It is likely Coroners will adopt a cautious approach. Organisations are encouraged to regularly review the UK Government guidance and evaluate risk management documentation and working practices regularly, to ensure suitable control measures are in place to protect their workforce and those who may be affected by their undertaking.

What is the position in residential care homes – are resident deaths reportable?

Statistics issued by the Office of National Statistics confirm as speculated that there have been a significant number of deaths within adult social care. The virus can easily spread between this highly vulnerable demographic; where until recently there has been limited guidance for adult care providers on PPE and social distancing measures. The UK Government has recently updated its guidance for this sector to clarify PHE recommendations and assist providers in the management of COVID-19 risks for service users and employees.

The Care Quality Commission (CQC) has updated its death notification process to now include COVID-19 cases. Providers may also be required to report to the HSE under RIDDOR, as set out above, any deaths of employees or third parties where there is reasonable evidence to suspect there has been occupational exposure of COVID-19.

A significant number of deaths of patients arising in an adult social care setting are referred to the Coroner’s service however, it has been identified that some deaths bypass the Coroner and are directed straight to the registrar following the submission of a Medical Cause of Death Certificate (MCCD) by a GP, within the extended 28 day period (by virtue of the fact that a COVID-19 death is considered a natural death). These deaths will not be subject to any further investigation or enquiry. Those deaths that are referred to the Coroner are usually where GPs are unable to attend and issue a MCCD due to UK Government restrictions. Additionally, as visits have been stopped family members are increasingly raising concerns as to the care and treatment received in view of their inability to see their loved ones. Such concerns may prompt further investigation to consider if there is any element of human culpable failure which has contributed to the death; which may cause the death to be considered unnatural and preventable.

Similarly, Coroners will undertake the same review exercise in assessing each case on its individual facts. Namely, preliminary consideration as to whether the cause of death fits the facts reported? have any concerns been raised by family members? did the deceased have no underlying vulnerabilities? was there a delay in seeking medical assistance? were adequate control measures in place? (compliance with PHE, HSE and CQC guidance) and what were the overall statistics of COVID-19 infections and deaths? In view of the spotlight on the adult social care sector it is likely any referrals will be subject to an investigation and depending on the information obtained referred for inquest.

Please note this article is current as at 24 June 2020.

If you require further guidance on your obligations to report COVID-19 under RIDDOR or Coronial investigations please contact Tim Hill or Sarah Valentine.

For more information contact

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