Where are we now?

We have long surpassed the initial death toll and infection figures forecast by the Government.  A “second wave” of the virus has occurred, a countrywide vaccination programme is underway and the UK’s risk level has reduced to three, classing COVID-19 as “in general circulation”.  For organisations with cross-jurisdictional operations there are further complexities as this comparatively positive position is not mirrored elsewhere.  With growing outbreaks in Europe, many countries struggling with overwhelmed healthcare systems and various new variants of the virus, COVID-19 remains a live issue with potential for significant business interruption.

The next date on the UK road map is 19 July 2021, a four week delay to the anticipated lifting of restrictions in June.  In any event though, for employers, continuous review is important to ensure systems take into account the most up to date information available.  As new research and guidance is released, employers must adapt.  Of particular interest may be the Health and Safety Executive’s (“HSE”) upcoming findings on understanding and mitigating transmission of COVID-19 in the workplace, transport and public places, due to be released on 24 June 2021.  Although the “big” roadmap dates are helpful for the general public, employers should look beyond this to ensure their legal obligations are being met.

Legal duties for employers

It is well known that employers have legal duties to keep their employees safe.  This duty also extends to people who may be affected by their undertaking – such as contractors and the general public.  The Health and Safety at Work etc. Act 1974 (“HSAWA”) places wide ranging duties on both companies and individuals with a significant amount of subordinate legislation regulating specific safety situations.  What may be less known is that this 40 year old legislation that governs workplace safety in England and Wales now also applies to our 21st century pandemic. 

This requirement under HSAWA to remove risk is not absolute.  The duty is to do everything that is “reasonably practicable” to keep people safe.  This phrase, which is central to safety law in England and Wales, is what determines the safety measures an employer must put in place.  It recognises that risk cannot be removed entirely whilst placing the onus of demonstrating that everything “reasonably practical” has been done on the employer.  This is far from straightforward and must be assessed on a case by case basis with legal advice often necessary to determine and document such decisions.

The duty to ensure the absence of risk so far as reasonably practicable extends to ensuring people are not exposed to undue risk from COVID-19. As workplaces start to re-open, either entirely or more fully, organisations in all sectors must consider the risk of exposure to COVID-19, and implement measures to minimise this risk insofar as possible.

Assessing and controlling risk

Determining and managing risk posed by COVID-19 will take the same form as any other safety risks faced by an organisation.  The Management of Health and Safety at Work Regulations 1999 require all employers to identify hazards, determine the likelihood and severity of harm, and impose measures to eliminate or control this risk.  Companies are likely familiar with this for their more typical day to day high risk tasks, like operating heavy machinery, chemical handling or working at height.  But an effective risk assessment is equally vital to any safety management system demonstrating COVID-19 safety compliance. 

A risk assessment must be undertaken by a competent individual.  As virus transmission is a different type of risk to that previously faced, organisations need to ensure assessments are being completed and continuously reviewed by someone with the appropriate expertise.  External assistance may be required if demonstrable experience is not available in-house.   

Risk assessment is a balancing exercise, considering the risk posed versus the practicality, time and cost to eliminate or reduce the risk.  Every risk must be considered individually and care must be taken in considering not imposing measures due to cost.  However, as a general rule, it would typically be reasonably practicable to adopt relevant control measures rather than require risk to be eliminated entirely.  We would expect this to be the case with COVID-19 risk management, where to completely remove the risk would likely mean simply closing down which is unlikely to be in proportion with the risk posed in the context of the virus. 

Whether a business is open to the public, a closed office setting or an industrial environment will make a significant difference to any such decisions.  Physical factors such as ventilation will also be relevant.  There is now a significant volume of Government and Health and Safety Executive (“HSE”) issued guidance on COVID-19.  Although not legally binding, where there is suitable government or industry issued guidance, demonstrable compliance with it is a good starting point to showing HSAWA duties have been met.

In all settings, vulnerable workers (for example, pregnant women, those with disabilities, immune compromised individuals etc.) must also be considered and this may trigger the need for specialist employment law advice.  All risk assessments must be tailored to the specific situation, taking into account both the task and those undertaking it.  A “generic risk assessment” is a term often heard (especially in safety related prosecutions) but this does not meet the legal requirement for a “suitable and sufficient” risk assessment. 

Another factor to consider is the inadvertent introduction of risk when changing risk assessments and method statements to add COVID-19 safe measures.  For example, reducing workers in some tasks may lower the risk of COVID-19 transmission, but add risk in other ways.  This is especially foreseeable in industrial settings so COVID-19 risk assessments must form part of the overall safety system rather than taking place in isolation.

Measures to manage exposure risk may include:

1. Physical barriers including as shields and screens;

2. Social distancing through working space layout changes, flexible working to minimise the number of people present at any time; and

3. Breaking the chain of transmission by creating shift based teams that do not come into contact with each other. 

Many employees may also consider requiring their employees to use lateral flow testing as a means of breaking the chain.  Or requiring employees to be vaccinated against COVID-19 so as to reduce the risk of transmission, or serious illness, when in contact with others in the workplace.  Although a vaccinated workforce would have safety benefits, such measures do raise potential employment law issues.  The crossover between safety compliance and exposure to unfair dismissal and discrimination claims must be considered carefully (see below).

What if an Employee tests positive?

It goes without saying that an employee who notifies a positive COVID-19 result should not be in the workplace until their isolation period is over and they are medically fit to return to their role.  But does an employee with COVID-19 trigger any reporting obligations on a company?  As with many safety questions, there is no clear cut answer and it will depend on the circumstances.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”) require employers to self-report to the HSE workplace fatalities, certain injuries, occupational diseases and specified dangerous occurrences (all known as “reportable incidents”).  There is no legal duty on an employer to report incidents of disease or deaths of members of the public (or service users) from COVID-19.  But where someone is exposed to COVID-19 as a result of their work, this would fall within the scope of RIDDOR and trigger the duty to report to the HSE.  In particular, HSE guidance states that a COVID-19 related RIDDOR report is required when:

1. an accident or incident at work has, or could have, led to the release or escape of coronavirus COVID-19 (a dangerous occurrence);

2. a person at work has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus (a case of disease); or

3. a worker dies as a result of occupational exposure to coronavirus (a work-related death due to exposure to a biological agent).

There are clear practical difficulties with identifying when a COVID-19 transmission has occurred at or due to someone’s employment.   A RIDDOR report may result in the HSE (or Local Authority) commencing an investigation to assess whether safety duties are being met.  Equally though, failure to make a RIDDOR report is a criminal offence so care must be taken when assessing whether the legislation has been triggered by COVID-19 exposure(s).  The decision on whether to report or not is a balancing exercise that will need to be assessed on an individual fact dependant basis.  Of particular concern would be any clusters of positive tests in a workplace as this would be indicative of ineffective or absent COVID-safe systems.

Home working and business travel

Many employees have been working from home for some time now and it may be appropriate to continue this for the foreseeable future, either through employee choice or as a safety necessity.  However, this does not remove a company’s responsibility to its employees.  An employer has the same health and safety responsibilities for home workers as they do for any other employee. 

To ensure compliance with the HSAWA, a system for assessing risk to all homeworkers  must be in place.  Primary issues are likely to include work station equipment safety and concerns about stress and mental health.  A risk assessment may determine that it is necessary to introduce control measures – such as the provision of specialist equipment – and all assessments and decisions should be fully documented and reviewed on a regular basis.  Measures that were suitable on a short term basis may no longer be adequate; or employees who had no specialist needs at the start of the pandemic may now have safety issues that must be addressed.

An organisation also retains safety responsibilities for employees on business travel, including overseas travel.  International travel is now permitted under a traffic light system with restrictions determined according to whether the destination country is red, amber or green (or a role specific exemption).  This is a changeable list and we have already seen that countries may be removed at short notice so company travel policies must reflect this. 

However, the first question must be whether the proposed travel is necessary, regardless whether it is to a permitted country.  If it would be possible to complete the task remotely, exposing an employee to COVID-19 risk may not be justifiable on a safety basis.  Any proposed business travel must be covered by a suitable and sufficient risk assessment.  The journey, time in country and logistics for emergency repatriation would all need to be considered.  Whereas previously only travel to known hostile environments and government designated “high risk” areas would red flag, we would now recommend safety systems provide for specialist oversight on all company travel arrangements. 

Employers’ other considerations

In addition to employers’ health and safety obligations, employers will also need to balance employees’ employment and data privacy rights with the need to have employees return to the workplace.  Presently, government guidance remains that employees should work at home if they are able to do so.  But as national restrictions are lifted, this guidance will inevitably change and many employers will be keen to have employees return to the workplace – albeit perhaps not on a full time basis.  This raises a number of issues that employers need to consider. 

For example, can employers ask employees to disclose their vaccination status?  Can employers mandate that employees must be vaccinated (the so-called ‘no jab, no job’ policy)?  What can employers do if employees refuse to return to the workplace?  These are not straight-forward questions and will heavily depend on the individual circumstances.  Employers should therefore carefully consider the steps they take and take legal advice beforehand.  But, generally speaking:

1. employers can in principle ask employees whether they have been vaccinated provided they put in place appropriate procedures for processing that personal data in accordance with their data privacy obligations;

2. in most cases it will be very difficult to defend a blanket ‘no jab, no job’ policy and will leave the employer open to risk of unfair dismissal and discrimination claims.  If employers are inclined to implement such a policy, particularly since vaccine uptake is high anyway, it would be prudent to leave ample room for exceptions; and

3. whilst government guidance remains as work at home if you can, and the employee has worked effectively at home since the pandemic began, it will be difficult to force employees to return to the office.  Once guidance changes, however, employers may seek to discipline employees who refuse to return to the office on the basis of breach of their contractual obligations and/or failure to follow a reasonable instruction (but bearing in mind the potentially greater flexibility needed for employees with disabilities before taking such disciplinary action).

4. Ultimately, employers may take a much more flexible approach to employees’ return to the workplace/homeworking going forward.  However, this too has its own challenges as employers will need to consider whether their employment contracts, other terms of engagement and policies are fit for purpose with a workforce operating on a hybrid and flexible basis.  Employers may also need to reconsider their approach to flexible working requests in light of widespread home working over the last year.  This is not something that employers have, in most cases, addressed during the pandemic – having had little opportunity to do so and, equally, without knowing whether it would be back to ‘business as usual’ or not as the pandemic (hopefully) passes.

Consequences

The HSAWA is general in nature and there is no specific legislation relating to COVID-19 safety measures.  Although there are safety regulations that touch on the spread of biological agents (which includes viruses) including the Control of Substances Hazardous to Health Regulations 2002 (“COSHH”), the Approved Code of Practice to COSHH states that “COSHH does not cover a situation where, for example, one employee catches a respiratory infection from another […] COSHH only applies in those circumstances where risks of exposure are work related and not those where they have no direct connection with the work being done.”

The closest we have is the Government issued COVID-19 guidance.  Although it is arguably an extension to the purposes of HSAWA and the remit of the HSE, the HSE have confirmed that they will enforce COVID-19 risk management.  Although not legally binding, we know from experience that the onus will be on the employer to demonstrate compliance with such guidance, or justify why an alternative method was equally effective, or goes above and beyond.  In practice, the Government guidance is therefore more prescriptive than it might, on the face of it, seem.

As such, in addition to potential employment law liability, if COVID-19 is not properly managed in the workplace, the criminal sanctions of the HSAWA may come into play.  Specifically, breach of the HSAWA is a criminal offence liable to an unlimited fine.  In the event of conviction of a safety offence, the level of fine will be determined using relevant Sentencing Council sentencing guidelines based on the level of harm risked, culpability and the defendant’s turnover.  For more traditional safety breaches, committed by companies with a turnover in excess of £50m, fines over £1m are no longer uncommon.  We do not yet have any examples of how this would be applied in practice to a COVID-19 safety breach.

It must be remembered that the HSAWA is based on harm risked, not harm caused, so exposure to COVID-19 risk would be sufficient.  A decision to prosecute would not, for example, require a COVID-19 related death or even a confirmed COVID-19 transmission.  The presence of a risk through inadequate systems, or a lack COVID-safe systems entirely, would be sufficient to charge a company with a breach of the HSAWA.  Nonetheless, there are clear practical challenges in evidencing the source of an individual’s COVID-19 exposure which would evidentially impact on any prosecution.  In practice, regulator involvement is most likely to arise from positive test reports, public complaints and employee whistle-blowers.

But is the HSE actually prosecuting employers for alleged COVID-19 related failings?  According to publicly available data, not yet.  However, this does not mean employers should be complacent.  There is no time bar on the HSE bringing a case for breach of the HSAWA.  Then, where a risk of COVID-19 exposure was known, it is for the defendant to show that it has done all that was reasonably practicable to avoid the presence of that risk.  This reverse burden of proof is unusual in criminal law and a high standard to meet. 

Even before prosecution the HSE has significant powers to investigate and impose business disruptive measures on an organisation.  For COVID-19 issues the HSE have indicated that prosecution is unlikely to be the first step, opting instead for engagement and opportunities to make safety system improvements.  This may take the form of an Improvement Notice or Prohibition Notice which would still impact on the day to day running of a business.  Enforcement notices are also publicly available and disclosable in procurement processes so the risk should not be disregarded.

It is evident that COVID-19 has expanded the health and safety obligations of employers, with employment law issues crossing into a company’s efforts to keep people safe.  As workplaces start to reopen, thorough management of safety risk and potential employment law liability will be vital to avoid further business interruption and legal and financial challenges appearing on the horizon.

Authored by Helen Boniface and Matthew Towers.