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 at Eversheds Sutherland, investigates 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. The HSE is involved in trying to help co-ordinate the government’s response to the global pandemic; individual COVID-19 cases are not RIDDOR reportable so would not fall for investigation and it would be near impossible to prove that an individual contracted the disease from exposure at their place of work. In this context, the regulatory framework should be seen as an enabler to assisting duty holders with the tools to ‘do the right thing’ by those they affect rather than as a stick to ensure measures are taken. In many ways, the burden is on the business to behave ethically and appropriately, rather than take measures driven by fear or fail to do anything out of misguided complacency. Potential regulatory sanction should not be used as a driver to achieve outcomes – this is about looking after people, rather than avoiding censure.
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. 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.’
Coronavirus advice for employers
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.