COVID-19: Workplace Safety and Liability Claims

What action should employers take?

As in all Health and Safety cases, the burden is on the business to demonstrate that it has put suitable measures in place to protect its workforce and others as far as reasonably practicable.

All businesses should make sure they are following all Public Health workplace safety guidelines, and exceeding them where possible. For example, businesses could consider having extra staff on-site to monitor social distancing more effectively. Employers should also purchase a stock of PPE so this is available to all staff members and visitors who require it. 

Whilst official guidance will differ from sector to sector, it is imperative that businesses are mindful that minimising some risks may increase others. For example, social distancing may inadvertently increase the chance of injury being sustained during manual handling work. Equally, lone working may reduce the supervisory capacity of management, putting less-experienced employees at risk of injury. 

A significant part of assessing risk is to look at the individual circumstances of the employee to work at the relevant location. Consider the below questions:

• Can your employee carry out his or her work at home?
• Should your employee be shielded due to underlying health conditions?
• Are you aware of any psychological / mental health reason that may impact on your employee working at a specific location?
• How will your employee get to work?
• Is your employee or any family member suffering with COVID 19 symptoms?

These questions will also need to be considered in respect of contractors visiting your premises. You may also wish to ask your business partners and suppliers to provide their own information as to how they are seeking to protect their employees.

Potential liability claims

Given the litigious culture we live in and the economic hardships being experienced by many across the country, it’s likely that claims will be made against some employers as a result of the COVID-19 pandemic. Here are just some of the potential claims we envisage: 

• Infection. COVID-19 is not, at time of writing, a listed Occupational Disease. An Occupational Disease is one which seems to have a link with occupational exposure, such as Carpal Tunnel Syndrome, Hand Arm Vibration Syndrome or Occupational Dermatitis. This means that a claimant attempting to claim for an infection of coronavirus would need to provide evidence that they had contracted the disease during the course of their employment. However, there is the likelihood that employers will be required to demonstrate that they have carefully considered the risks to their workforce and taken reasonable steps to ensure the safety of their employees.
• Psychological and physical injury. Given that certain employees may have been furloughed, it could be the case that those who remain working are left with a significant increase in their own workload, leading to stress or physical injury. Employers will likely be asked to exhibit the methods by which they have sought to account for these changes in workload and the increase in mental or bodily strain that these might create.
• Working from home. Most homes have not been designed or risk-assessed for the purposes of office-based work and therefore an employer will need to ensure that they have considered the potential issues that may arise whilst their employees are working in their own houses. These risks could be musculoskeletal, if staff use unsuitable chairs and desks for long periods of sitting. The risk could also be stress-related, as employees experience frustration with a lack of support while conducting their work. 
• Vicarious liability. Employers remain vicariously liable for the potential negligence of their own employees. As such the current COVID-19 pandemic could mean that claims are made against businesses because of the sometimes remote, unsupervised actions of their workforce. For example, if an employee with COVID-19 continued to interact with customers then the company could be deemed vicariously liable for the spread of the virus to others outside the business. Equally, employees on a skeleton staff may end up operating machinery on which they have not had full training, putting themselves and others at risk.

If a claim does occur, employers will be required to demonstrate that the control measures they have devised to reduce the risks of COVID-19 infection are being effectively implemented. Historically employers have relied heavily upon managers and line managers to observe that processes are being followed and acceptable working methods used. 

However, social distancing might make that type of supervision more problematic, whilst employees may be reluctant to report COVID-19 symptoms for fear of being prevented from working. A multi-disciplinary approach between HR and Management will be required to effectively manage the situation as it evolves.

Instilling a sense of responsibility within your workforce

Whilst it is an employers’ duty of care to ensure a safe working environment, it is ultimately everyone’s responsibility to make sure guidelines and workplace safety rules are followed. Employees must follow the guidance provided by their employer, such as obeying social distancing and self-isolating if they exhibit symptoms. 

In order for employees to follow rules and guidance, they must be made aware of it in the first place. Businesses must develop workplace guidelines which include what hygiene routines are expected (such as washing hands regularly for at least 20 seconds with warm water and soap, avoiding touching other people’s belongings or equipment, disinfecting surfaces after use etc). Transparency and clarity is key, and employers must be able to prove they have done their due diligence in communicating safety expectations efficiently. 

If needed, carry out training in fitting, wearing and using PPE. This should also include information on the safe removal, sanitation and disposal of the equipment. 

Businesses must put the onus on their workforce to be sensible and put the safety of the team first and foremost. Encourage a sense of teamwork within the workforce, ensuring colleagues understand the importance of following the rules. They must not put other members of staff at risk. 

By now, most of us will be aware of the symptoms of COVID-19, but this doesn’t mean businesses should be complacent. Communicate with employees via email or even on-site signage to make it crystal clear what the symptoms are and when to self-isolate.