In this article we explore the issues of risk and risk assessment in light of the COVID-19 government guidance (“the Guidance”) and consider the likelihood of prosecutions being brought against businesses deemed to have fallen short of these requirements.
As more businesses prepare to bring their employees back to work following the latest easing of lockdown measures on 4 July, there has been much discussion around potential employer liability for COVID-19 infections linked to the workplace. Though contraction of COVID-19 is likely to be the catalyst for regulatory involvement, it is important to remember that prosecutions can be brought on the basis of risk alone, without the need for any actual harm to be caused.
Scope of Risk
Sections 2 and 3 respectively of the Health & Safety at Work etc Act 1974 (“the 1974 Act”) require an employer to ensure (so far as is reasonably practicable) the health and safety of its employees and non-employees. What is reasonably practicable will be different in each case but, where there is a risk to health and safety, an employer must essentially take all possible steps, unless they can demonstrate to the satisfaction of the court that the necessary steps would have been disproportionate to the level of risk.
The case of Regina v Board of Trustees of the Science Museum confirmed that S3(1) (and presumably S2(1)) of the 1974 Act is concerned with the possibility of danger, and a prosecution does not require any actual injury or illness to have been suffered1. Sentencing will address the extent of any actual injury or harm, but the legislation is primarily concerned with risk, and how an organisation manages this.
Businesses now have an additional requirement to make a report under RIDDOR where a dangerous occurrence leads to possible or actual exposure to COVID-19, or in the event of COVID-19 diagnosis or death following occupational exposure. Though in practice it is likely to be difficult to attribute incidents of COVID-19 to a workplace, employers need to have managed the associated risks. A link to the Health and Safety Executive’s (HSE) latest guidance can be found here.
As lockdown measures are released, and businesses see the return of employees and non-employees, it is therefore imperative to plan properly and complete suitable and sufficient risk assessments.
How to Assess Risk
Businesses need to take all reasonably practicable measures to extinguish or reduce risk, ensuring that such measures are maintained, reviewed, enforced and updated where necessary. Prior to reopening, businesses should conduct and document a risk assessment, amending existing processes and procedures to implement the measures recommended in the Guidance insofar as is possible. Evidence of a business’s proactive assessment and management of health and safety risks will protect against both harm and future enforcement action.
The Guidance, discussed in more detail below, requires every business to share the results of its COVID-19 risk assessment with the workforce and, if possible, consider publishing the results on its website. The Guidance goes on to say that the government "would expect" all businesses with over 50 workers to publish the results on their website, though they have stopped short of legislating for this. Businesses may decide to publish a summary of the findings on their external website or communicate to non-employees in an alternative way.
The HSE provides general guidance on how to do a risk assessment, as well as more specific COVID-19 guidance including; ‘Working safely during the coronavirus outbreak’ and ‘Talking with your workers about preventing coronavirus’. These guides provide a useful insight into HSE’s assessment of best practice in relation to COVID- 19 but, in order to ensure that a company’s risk assessments are suitable and sufficient, each business will also need to have regard to the guidance on working safely during COVID-19.
The government has produced a series of guides covering different types of work, the latest version of which can be found here. Within this catalogue is a guide on practical actions for businesses to take based on five main steps, which can be summarised as follows:
- Carry out COVID-19 risk assessments in consultation with workers or trade unions, to establish what control measures to put in place.
- Clean workplaces more frequently and provide handwashing facilities or hand sanitisers.
- Take all reasonable steps to help people work from home.
- Maintain two metre social distancing where possible.
- Manage the transmission risk where social distancing is not possible. Any unnecessary activities should cease, and necessary activities should only continue with mitigating measures.
A downloadable notice has also been made available, which businesses should display in their workplaces to show their employees, customers and other visitors that they have followed the Guidance.
Though the Guidance is not law, it is likely to be taken as the minimum businesses need to do, in conjunction with existing health and safety law and regulations, to comply with the law. But in this rapidly evolving environment, what is the actual risk of prosecution for failing to adequately assess the risk of COVID 19?
Risk of COVID-19 vs Risk of Prosecution
It is clear that COVID-19 has expanded the health and safety obligations of a business, particularly in respect of risk assessment and risk management. Many businesses will be trying to cope with the unprecedented demands placed upon them, in the face of the uncertainty and other business pressures, and may struggle to maintain an audit trail of risk assessment decision-making. The extent to which regulators may be sympathetic to this remains to be seen but, so long as the measures identified in a risk assessment have been implemented, it may be possible to successfully argue that any failing is limited to the documentation, rather than assessment of the relevant risks. Regulators may also utilise Improvement and Prohibition Notices in the first instance, instead of pursuing prosecutions, where health and safety in respect of COVID-19 is deemed to be an issue.
There are concerns that the lack of specific laws covering employers’ duties in a pandemic situation could prove to be a minefield for business. The guidance clearly sets out the expectations on business and has been described as a “wolf in sheep’s clothing: It’s described as flexible, but we know full well how courts will treat it – they will treat it as rules and laws to be complied with.2
Exposure to the risk of COVID-19 in the workplace is all that is required to establish a ‘prima facie’ case for the prosecution, and it is vital that businesses are cognisant of this when planning their response to the pandemic. Though one might reasonably expect that best endeavours and a commitment to adapting and improving might be sufficient to save businesses from prosecution, all basic legal duties remain applicable. Complacency or disregard for the Guidance is not likely to be tolerated, and those identified as the most culpable offenders should expect to feel the full weight of enforcement action. It is therefore essential that businesses comply with the Guidance and implement the relevant measures to demonstrate that the risk has been suitably assessed and addressed; a failure to do so will inevitably increase the risk of prosecution.
1  1 WLR 117S1
2 Simon Antrobus QC of Crown Office Chambers, speaking at a seminar to discuss enforcement of COVID-19 guidance for workplaces.