COVID-19: Can employers be prosecuted if employees are exposed?
Amidst all the 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. Paul Verrico, Partner, and Sarah Valentine, Senior Associate, at Eversheds Sutherland, investigate whether that is the case.
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. Whilst the HSE has recently updated its guidance as to when COVID-19 cases will be reportable under the Reporting of Injuries, Disease and Dangerous Occurrence Regulations 2013 (RIDDOR) the likelihood is that few will satisfy the reasonable evidence criteria set out by the HSE in their accompanying guidance.
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. The HSE in its reporting guidance has 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. Similarly, one could foresee a situation where someone carrying out research with the virus being accidentally exposed – that scenario is definitely reportable.
Generally, however, the application of the reporting duties to employment sectors away 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 have been satisfied. In the majority of cases, unless a direct link can be established, it is positively arguable that the reporting obligation is not triggered. At the time of writing, there have been over 103,000 confirmed cases of COVID-19, and with the numbers increasing daily, the ability to determine work-related exposure is inevitably problematic as the potential human interactions which could give rise to exposure are many and complex. For this reason, it is NOT anticipated that a raft of RIDDOR notifications will be made to HSE for COVID-19.
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 eliminating non-essential travel.
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Government Guidance
Government guidance is fluid and swiftly changing; there is a need to closely monitor the situation to stay current with any measures necessary, and act accordingly – if you want statutory authority, the Management of Health and Safety at Work Regulations 1999 tells us:
‘Any assessment shall be reviewed by the employer if:
(a) there is reason to suspect that it is no longer valid; or
(b) there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them’
Some employers are asking all visitors to self-declare any exposure to affected persons or any 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 working conditions accordingly. Employees can ask to see the outcome of the risk assessment and the employer must show it to the individual.
The message then is simple: act responsibly and ethically, not out of fear of prosecution but out of an appropriate sense of accountability to staff and customer stakeholders. Stay current and do all that is reasonably practicable based on government advice and an ever-changing situation.
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