COVID-19 continues to dominate the news cycle at present – from news on the vaccine development to the issue of some employers putting pressure on employees to attend work during a lockdown in the UK.
Reports are increasing and indeed, the media is now live to this issue: https://www.bbc.co.uk/news/business-55695185
The report summarises that some employers across many sectors are putting pressure on employees into the workplace, either in ignorance of the government guidance / law and / or utilisation (questionably) of a key work exemption. The report also details instances of employees being asked to work with symptoms and/or a positive diagnosis of the virus – a direct contradiction to public health guidance. These employees, if true, are opening themselves up to both a criminal and civil liability. The Health and Safety Executive (HSE) has received 134,000 complaints since the crisis started, but issued only 192 enforcement notices. "We aren't naïve, we fully understand some employers are not trying to do the right thing," its boss told the BBC. This may mean that there is a revised focus on HSE investigations and prosecutions.
HSE data confirms that December 2020 saw the largest increase (so far) in HSE notifications by employers with the number totalling 4040 – 35 of which were sadly fatal. Overall since the pandemic began there have been 21,368 notifications of workplace exposure and worryingly, 254 total fatal notifications. The HSE guidance on RIDDOR reporting confirms you should only make a report under RIDDOR when one of the following circumstances applies:
- · A person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to the coronavirus. This must be reported as a case of disease
- · A worker dies as a result of occupational exposure to the coronavirus. This must be reported as a work-related death due to exposure to a biological agent
The numbers could indeed be higher whereby employers may well be dismissing the possibility of workplace exposure owing to the employee being ‘out and about’ – shopping for essentials, using public transport etc.
The COVID-19 bereavement scheme for family members of NHS and health and social care workers is a clear sign from government as to their awareness of risk of injury / death in the workplace, due to workplace contraction.
The legal landscape will certainly be impacted by COVID-19 and a brief glance at Companies House also evidences that many companies and law firms alike are registering their claims firms. Claimant law firms are also publically advertising their services for those who allegedly contract the virus in the workplace – all of this points to this having the potential to be the next claim focus of the Claimant PI industry. Further, it is noted that trade unions are also actively tracking alleged workplace exposure and noting the ability to pursue a claim for this.
Our recent blog looked at the risk of injury to home workers https://www.crawco.com/blog/out-of-sight-but-not-out-of-mind and confirmed that employers owe employee statutory duties under the Health and Safety at Work Act 1974 to take reasonably practicable steps to safeguard safety and health. Employers will be (or should be) well aware as to the legal – both common law (tort) and statutory obligations and duties they owe to employees. What may not be so clear is how this duty applies to their obligations in relation to and during the pandemic.
Proactivity is key – for both risk management and future defence
- Risk management
We consider below an overview of points and steps to consider:
- Currently, the Government confirm that “You may only leave your home for work if you cannot reasonably work from home”. Many employers who allowed home working during the first major national lockdown will struggle to provide a substantive reason as to why this should not be the case during the current lockdown that is in place. A lack of trust and/or a questionable reliance upon a ‘key worker’ exemption together with poor risk management will not afford employers a defence in the event an employee alleges contraction of the virus in the workplace. So, if you can allow employees to work from home then you should absolutely do so. This will be a major risk prevention factor if employees are no longer based in a physical workplace.
- If employees for whatever reason, be it key worker exemptions and/or a necessity of the business, needs to physically attend the workplace, employers should ensure that they are aware of all relevant guidance both at legal and HSE levels to ensure the optimal safeguarding measures are in place – these could include but not be limited to:
- A clear and robust risk assessment – this may seem obvious but this needs to be a thorough and well documented process to ensure employees are protected and should look at, as per HSE guidance, the following:
- Identify what work activity or situations might cause transmission of the virus.
- Think about who could be at risk; are any vulnerable individuals present?
- Decide how likely it is that someone could be exposed.
- Act to remove the activity or situation, or if this isn’t possible, control the risk and seek to minimise to the lowest level possible.
- This could include a rota system to limit employee workplace presence based on the size of the premises relevant to the total number of employees present at any one time.
- Protective screens, enforced social distancing and mandatory (unless exempt) face mask usage, cleaning stations for employees and regular, thorough ‘COVID’ safe cleaning the communal workplace areas.
- Assessment of ventilation should also be put in place as the HSE note ‘good’ ventilation can assist in preventing the spread of the virus. ‘Good’ will depend on the workplace environment, presence of natural ventilation and the type of ventilation system in place. There is further detailed guidance via the HSE that should be considered accordingly based on your workplace set up.
Capture now / defend later
- Proactive data / evidence capture will be key to defend the potential pending claim wave, employers should look to set up data capture for all relevant documentation including but not limited to:
- RIDDOR notification where appropriate.
- Clear, robust investigation processes / documentation.
- Collation and retention of key evidential documents – cleaning regime data, data confirming PPE provision, training records, risk assessment and review, witness evidence where appropriate.
The future claims wave – causation and quantum
The legal claims landscape for COVID-19 personal injury claims is on the horizon but still unclear. There are no known cases before the Courts at the time of drafting this article but we anticipate the next 12 months will change this for better or worse as the first test cases are put before the Courts.
Employees will still need to satisfy the age old test of breach of duty (be it statutory, common law or both) and indeed thereafter causation (though these will be inextricable linked). The link between liability and causation will no doubt be highly disputed and thus this claim area has the scope to be highly litigious and the Courts will approach these cases with a forensic and no doubt cautious approach, given the clear floodgate claims situation that could follow.
As it is the start of this potential claim trend, there is currently no guidance on how the Court may value these claims. A glance at Chapter 6: Injuries to Internal Organs (15th Edition) may give an indication as to how such injuries may be assessed financially, but as always, each claim will be assessed on its own merits and this is particularly the case given the varied impact the virus has upon each individual. Employers should look now to take all appropriate steps in accordance with legal and HSE requirements / guidance.
The Speciality Risks Team at Crawford Legal Services can assist you whatever your requirement or sector – be it utilisation of our connected claim solution offering providing access to the global Crawford TPA: Broadspire solution and to one of largest unrivalled dedicated liability adjuster teams in the UK that is able to work in unison with Crawford Legal Services. We are able to leverage legal privilege through our operating model to ensure your investigations are fully covered by this aspect of privilege or alternatively we are able to assist through the provision of standalone risk management / litigation services.
Please contact Andrew Higham – Solicitor within our Speciality Risks Team for further information on this article and / or a menu of services.