Where does liability sit if employees catch coronavirus at work or on the way to work?
Government advice remains that people who can work from home should continue to do so. Employers should decide, in consultation with their workers, whether it is viable for them to continue working from home. Different advice applies in Scotland, Wales and NI. As soon as practicable, workplaces should follow the new government ‘Covid-19 Secure’ guidelines, which cover 12 types of work, including offices and contact centres; shops and branches; close contact services; and factories, plants and warehouses.
Employers have existing contractual and statutory duties to take care of employees’ health and safety.
This will include a responsibility to take reasonable precautions to prevent the spread of Covid-19 within the workplace. The legal ramifications of failing to comply with your overarching legal and statutory duties in respect of this specific risk are serious. We recommend that you seek legal advice if you would like to understand your legal obligations, and the potential ramifications in more detail.
Employers must keep records to show that they have conducted appropriate COVID-19 risk assessments to identify and manage risks appropriately and that they have:
- Undertaken workplace safety audits
- Updated policies and procedures
- Identified potentially hazardous situations
- Made changes to reduce exposure
- Trained employees and communicated new policies and procedures to them
- Monitored the workplace to ensure compliance by employees with new health and safety rules, policies, practices and procedures
- Performed random checks and kept on-going compliance reports in regular and continuous efforts to ensure compliance
- Monitored risk mitigating measures to make sure they continue to protect visitors and workers
- Assisted the Test and Trace service by keeping a temporary record of staff shift patterns for 21 days and assist NHS Test and Trace with requests for that data if needed
- Encouraged reporting of problems and have an open environment that welcomes feedback
Failure to complete a risk assessment which takes account of COVID-19, or completing a risk assessment but failing to put in place sufficient measures to manage the risk of COVID-19, could constitute a breach of health and safety law.
Other duties at work
As well as the over-riding duty to care for employees’ health and safety the following duties also apply:
Risk assessment: Employers who have employees returning to their usual workplaces will need to ensure that they have conducted appropriate health and safety risk assessments to identify and manage risks appropriately. All employers in England should follow Government and Public Health England advice guidance to manage the workplace environment, for example by implementing social distancing measures in accordance with government guidelines. Government advice on how to manage workplace risk and make your businesses ‘Covid-19 secure’ is available on the Government website.
The Health and Safety Executive (HSE) has issued guidance on reporting cases of Covid-19 under the 2013 Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR). Reports will only be needed if:
- A worker has been diagnosed as having coronavirus and there is reasonable evidence it was caused by work exposure. This must be reported as a case of disease.
- An unintended incident at work has led to someone's possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.
- Such incidents are more likely to occur in a laboratory, health or care setting. HSE guidance does not suggest that every case of Covid-19 in the workplace is reported and it is unlikely that extensive RIDDOR notifications will be made. Employers must consider the individual circumstances when they decide whether to report.
- If employers do not take appropriate steps to comply with the relevant law and guidance such as social distancing at work or ensuring workers in a 'shielded' category follow NHS advice to self-isolate, the HSE could simply provide advice or issue enforcement notices. The HSE will be conducting spot inspections and responding to reports from concerned individuals. In Scotland and Wales the police can enforce social distancing in the workplace.
- Employers are expected to respond to any advice or notices issued by enforcing authorities rapidly and are required to do so within any timescales imposed by the enforcing authorities.
Travelling to work
The current government advice in England is to ‘actively encourage’ a return to work while trying to avoid public transport and maintaining social distancing. It will be difficult for employees to prove that they contracted the disease travelling into work and that the employer should be liable. However, employers may be liable if employees can show that they were unnecessarily exposed to risk when there were alternatives available.
For those returning, the Prime Minister advised they should avoid crowded public transport and either go by car, or even better by walking or bicycle. If travelling using public transport in England, wearing a face covering is required by law. Some people don’t have to wear a face covering including for health, age or equality reasons. Elsewhere in England it is optional and is not required by law, including in the workplace. The transport secretary has announced new powers for councils to widen pavements and create new cycle lanes to facilitate socially distanced travel. As this is government advice, employers should encourage employees to avoid public transport and may consider, where possible:
- Provision of parking spaces
- Secure bicycle parking
- Shower facilities
- Flexible or staggered working hours by agreement to enable employees to avoid more crowded public transport
- Special provisions for vulnerable staff e.g. pregnant, and those with impaired immunity helping them to avoid public transport or its use at peak times
- Encouraging minimising the number of people outside of a household or support bubble travelling together in any one vehicle, using fixed travel partners
- Talk to our Avison Young ‘Reopening your Workplace’ Experts about staggering working hours and flexible working approaches.
This webinar and Q&A document reflects our professional opinion of the factors impacting workplace transition in the context of our role as workplace specialists. It does not constitute formal advice and we recommend engagement with specialists, including your own internal or external health and safety advisors, if you are transitioning your workplace to a 'Covid secure' standard. Please also note that the Q&A contains responses to specific questions which therefore may not be appropriate for all types of businesses or workspaces. The spread of COVID-19 and the containment policies being introduced are changing rapidly, and some of the views expressed herein may not reflect the latest opinion of Avison Young. We strongly recommend that you continue to monitor the relevant UK Government advice, and any supplementary local advice. These sources provide regularly updated information on the COVID-19 outbreak: World Health Organization, Government of Canada, U.S. Centers for Disease Control and Prevention, UK Government, Johns Hopkins University COVID-19 Case Tracker.