Returning to work from COVID-19 lockdown has been a frenetic period for those involved in the management and governance of occupational risk. Adherence to the ever-changing government guidelines should give some assurance and acceptability to those who are returning to the workplace. The attention of top management will be drawn inevitably to the potential liabilities of failing to act correctly.
What are the pitfalls we are likely to encounter as the Covid story unfolds and what can we do to mitigate them?
There are common issues of non-compliance unfolding across a range of industry sectors. Where employers are failing to manage infection-control correctly, the enforcing authority (HSE or Local Authority) will take action by issuing improvement notices or prohibition notices and potentially leading to prosecution. This is no different from the plethora of health and safety hazards a practitioner routinely manages. Inspectors may carry out spot checks with their initial enquiries being directed at the suitability and sufficiency of risk assessments (Regulation 3 of the Management of Health and Safety at Work Regulations 1999).
A stance can also be taken using the general duties as laid down in the Health and Safety at Work Act etc 1974, namely section 2 relating to employers’ duties to employees and Section 3 duties of employers to persons other than employees. A company was recently served an improvement notice under these sections in July 2020 because they had not implemented necessary measures to prevent the spread of Covid-19. Failing to provide arrangements for monitoring, supervising and maintaining social distancing should be considered as such a measure.
Specific legislation can be levied for failing to adequately clean premises, and for failing to provide access to welfare and washing facilities. In August 2020 a company failed to provide suitable and sufficient washing facilities in a communal welfare facility. They were served an improvement notice under the Workplace (Health, Safety and Welfare) Regulations 1992 (Regulation 21). Similarly, construction sites are covered by Schedule 2 of the Construction (Design and Management) Regulations 2015.
Managing COVID-19 Liabilities and Recognising Penalties
Decisions will need to be made by top management on how to financially resource necessary control measures to avoid exposure to COVID-19 liabilities. In the 5 months between February and June 2020, the Bank of England spent approximately £120,000 on Covid-security at their Threadneedle Street premises. This was spent on face masks, hand sanitiser, altering facilities, one-way systems, thermal imaging cameras, screens for catering, signage and additional cleaning.
Businesses can also fall foul of the Coronavirus Act 2020 and subordinate regulation. For example, those that threaten self-isolating staff with redundancy if they do not come to work could face a fine of £10,000 and prosecution.
For serious and blatant criminal offences, prosecution beckons, via health and safety legislation, gross negligence manslaughter or corporate manslaughter. Abroad, evidence of Covid-related litigation is appearing. In Massachusetts’ a case has been brought against a nursing home for making a decision that led to the deaths of many dozens of elderly residents and staff. They allegedly decided to house 42 residents in two locked dementia care units with a capacity for only 25. Some residents had Covid-19 but most did not. Such an egregious case would merit examination under the Corporate Manslaughter and Corporate Homicide Act 2007 if it were to occur in the UK.
Thus far, we have considered the criminal liabilities associated with the mismanagement of Covid-19 security. Will workers and third parties also turn to civil courts for compensation? Claimants will have recourse to this via the general duties that employers have to provide safe systems of work, safe work equipment and safe places of work; although difficulties will arise in establishing negligence on the part of the organisation. How can a claimant prove that exposure to Covid-19 occurred within the workplace rather than the community? The claimant would need to demonstrate that the organisation materially increased the risk of harm to the claimant.
In July 2020 over 1,400 bereaved family members in Liverpool joined in class legal action against the government over its handling of the Covid-19 crisis. In April 2020 two doctors launched legal action against the government’s advice over personal protective equipment. How much further appetite there is to pursue such claims, and for the judiciary to allow them remains to be seen, and such recourse may remain as high-profile actions against national and local government, quangos, health care organisations and similar.
A picture is emerging of companies failing to provide arrangements for monitoring, supervising and maintaining social distancing; failing to introduce adequate cleaning regimes; and failing to provide access to welfare facilities. Businesses need to ensure that safe systems of work are in place, that they are practised by employees, reviewed, reassessed and properly enforced. If adequate measures can be demonstrated, then enforcing authorities will be persuaded that all reasonable steps have indeed been taken by the employer during these exceptional days.