Shared & Halved – Business leaders series: Keeping workers safe

We recently held a webinar for business leaders answering some of your questions about potential civil and criminal liability (arising both from risks to employees and the public) as well as the practical day to day operational challenges posed by COVID-19. Read about the main issues discussed.

Introduction

Coronavirus COVID-19 is a crisis unlike any other we have faced as a country, presenting a new and varied set of challenges to UK and global businesses.

Based on what you’ve told us is most pertinent to you in the current climate, we have devised a series of webinars aimed at you, business leaders, to look at implications of the outbreak. In this webinar we looked at issues around keeping workers safe and how to avoid civil and criminal liability claims. Below are our key tips and takeaways.

Safety in the workplace

• Employers owe the same duties to employees who are working at home
• Undertake a detailed, bespoke risk assessment, which should consider all relevant risks and be produced in consultation with stakeholders
• All reasonably practicable measures must then be taken to address the risks identified. Any departure from external guidelines needs to be justified (inconvenience/additional cost unlikely to be good enough). Consultation with employees is key
• Helpful guidance is available - make use of it. There is, for example, Public Health England and Government websites on sector specific guidance on social distancing (although it doesn’t specifically cover offices); the HSE website contains practical advice on working arrangements; and there is a good ACAS note on social distancing in workplaces
• What is ‘safe‘ or reasonably practicable depends on the nature of the business in question. There is no expectation that all risk can be eliminated, but it must reduced in so far as is reasonably practicable. In the criminal context, it would ultimately be a decision for the jury
• As regards reducing the risk of civil liability - being able to demonstrate with a paper trail that you are robustly managing, adapting and enforcing your new procedures is key. Merely engaging in tick box exercises or using COVID as an excuse because it is unprecedented will not suffice
• There is likely to be a great deal of pressure on employers to step up their game in terms of managing risk.

Minimising risk of criminal/civil liability if an employee contracts COVID-19 at work

• The HSE has said it will take a reasonable and proportionate approach to enforcement, but no reason for complacency (still possible that directors/managers could have personal liability)
• Communication with employees is key as is the need to be clear what you are doing to keep your employees safe
• In context of civil claims, issues of causation (how was the infection caught?) are in some cases likely to be complex but in others more straightforward. It remains to be seen whether Courts will approach this as they do with other occupational disease cases and require claimant’s to prove ‘material contribution’ rather than the usual direct causal links – there will most likely be multiple causation arguments
• It should be a top priority to have audit trail showing how policies and procedures to reduce risk of infection were decided, implemented and enforced
• The government may legislate as to how COVID-19 claims are dealt with in due course, especially if we see ‘ flood gates’ and an increase in EL and PL claims.

Personal protective equipment

• Pre COVID-19, PPE was a last resort, the emphasis being on how to reduce the risk in the first place
• As yet, no final position from the government (outside the healthcare sector) but guidance likely
• Difficult for employers to make decisions but perhaps the issue could be covered as part of broader exercise of asking employees what their concerns are, and how they might be addressed.

Specific employment issues / returning to work

• Under employment contracts, employers have an implied duty to provide a safe place of work and failure to provide a safe place of work is likely to lead to complaints, grievances, refusals to work and at worst claims for constructive and unfair dismissal. Try to avoid potential claims by addressing health and safety concerns now, and as part of planning for return to work
• Whilst there have been no express changes to the time limits for employment claims (and none are anticipated), the Employment Tribunals have indicated that the current system does allow for some extensions of time and have issued some really helpful Presidential guidance and FAQs
• The current changes to working practices are temporary, and enforced. Try to engage with your workforce now to agree how their concerns about returning to work can be addressed; this will need to include issues such as childcare, PPE and transport
• Health and safety risk assessments will need to be reviewed to take account of new arrangements in place.

Final thoughts

• Inevitably, there is a risk of a surge in liability/employment claims arising from the pandemic - even if they have no merit. To avoid the potential administrative burden and bad publicity, ensure you rigidly enforce your policies and procedures and can show a paper trail that you have taken practical steps to mitigate
• Bear in mind the insurance industry is likely to exclude COVID-19 liability if existing policies do not already do so (pandemics are usually excluded)
• But it is by no means all doom and gloom; increased homeworking might be good for your business, people have learned how to use new technologies, and there have been real benefits for the environment.