Most of us are only just beginning to process the full implications of the COVID-19 global pandemic and the new and tighter restrictions placed upon us by the UK Government.
Businesses and their management are understandably concerned and confused; over the last couple of weeks I have had lots of questions around how to respond to the rapidly changing landscape; always with a view to keeping themselves and their people safe – it has given me a boost to be able to occasionally be of some small help and settle some nerves.
Can we be prosecuted if our staff are exposed to COVID19?
One of the most anxiety-inducing and curiously frequent questions has been – “can we be prosecuted if our employees are exposed to the virus?”
We all know that, as employers, we 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 our employees. Those duties also extend to providing a safe working environment to anyone affected by our businesses and not exposing third parties to risk.
But really – COVID-19 is a national emergency; it would be extraordinary if in this context the vigorous enforcing of health and safety legislation was pursued by HSE – bluntly, they are far too busy trying to help inform and co-ordinate the government’s response to the global pandemic.
Are cases of COVID-19 RIDDOR reportable?
One thing to be clear about is that individual COVID-19 cases are not RIDDOR reportable – that means there would be no need for an investigation; the reality is that it would be almost impossible to prove that an individual contracted the disease from exposure at their place of work.
I think we can better look at H&S law as a resource to provide us with tools to help do the right things. In many ways, the burden is on us to behave ethically and properly, rather than act out of fear or just sit back and do nothing. Enforcement and sanctions should not be seen as a sword of Damocles held over us to get us to behave – this is about looking after people, not ducking and dodging enforcement.
Assess the risk as you normally would
The UK’s health and safety professionals know how to use risk assessment to consider and then prevent or limit exposure to dangerous substances like legionella bacteria, noxious gases or airborne particulates. Those skills are just as relevant with COVID-19. Just as we would take steps to prevent other more familiar contaminants from spreading, risk assessments should look at the measures to mitigate COVID-19 exposure such as having readily available hand-washing facilities and sanitizers, use of appropriate personal protective equipment, encouraging and facilitating remote working and reducing or stopping non-essential work travel.
Government guidance is developing on an almost daily basis – on the day of writing, we have been told that the UK is in lockdown; that we should stay at home and only travel to and from work if it is essential; this shows that we all need to closely monitor the available sources to stay informed and act on advice.
If you really need legal justification, the Management of Health and Safety at Work Regulations 1999 tells us to review risk assessments if we think that they may no longer be valid or where there has been a significant change in the matters to which an assessment relates – i.e. any change in guidance.
Want my advice?
My advice is pretty straightforward; take “all reasonably practicable steps” to look after your people because it is the right thing to do and not because you are scared you might be prosecuted. We owe it to everyone we interact with whether we are at work or not to do all we can – monitor the Government website, keep up to date, stay as fully informed as you can be and do what you are told.
Please email me at email@example.com if you have any questions or queries – no one can claim to have all the answers but I will always do my best!
This blog was written by Tristan Meears-White, Notify’s resident Subject Matter Expert. Tris is a Health and Safety lawyer hailed as a “key individual” by Chambers UK and a “first-class health and safety lawyer” by Legal 500 2018/2019.