Shyam Mistry on the risks the return to work poses for businesses
With the Government giving the green light for employees to return to work in certain circumstances – that is, those unable to work from home – it poses certain risks employers should be aware of.
While the guidelines suggest that we should continue to maintain social distancing and “stay alert”, what does this actually mean from an employer’s perspective? And how can employers ensure that a safe working environment is being provided for their employees?
The law is clear: it is the employer’s duty to ensure, so far as is reasonably practicable, the health and safety and welfare of all their employees when they are at work. Furthermore, there is a duty on employers to make suitable and sufficient assessments of:
In discharging this duty, an employer will at the very minimum, need to:
Practical and reasonable steps have to be considered and taken to ensure the safety of employees and to minimise the risk of claims. It should be emphasised that the preventative steps taken to minimise risk should be reasonable and suitable for the workplace. Employers are not required to be perfect.
So, what should an employer do to minimise the risk to employees? Guidance is provided by the HSE (Health and Safety Executive) who have released a guide that explains how you can protect your employees from COVID-19. Without going into specific details here, employers should consider the following:
Further details can be found in the HSE guide at the link at the end of this article.
As mentioned, employers will need to identify the risk, assess its severity and ensure that reasonable and practicable steps are taken. Even if all necessary steps to reduce risk are taken, that of course does not negate the fact that an injury may still occur and that an employer may be sued as a result. You now may be wondering whether any potential claim has merit and how to successfully defend such claims.
For a claim to be successful, the claimant needs to establish a duty, a breach of that duty and that the breach made a material contribution to the injury.
As mentioned, every employer owes a duty to its employees. A breach of the duty will depend on what Practical Steps have been taken and implemented. For example, you may have identified an employee who has respiratory issues but you have informed them that they still have to work which involves coming into close contact with the public. You fail, however, to provide them with any PPE to reduce the risk of being infected when encountering the public. There is a strong argument that you, as the employer, have failed to take the reasonable measures to safeguard the health and safety of that employee.
If a breach of duty is established then the next thing to consider is whether the breach caused and/or materially contributed to the injury complained off – for example, becoming infected with COVID-19 during their employment. Given the nature of COVID-19 and the numerous infection sources, establishing liability may prove very difficult for the claimant. While it may be difficult, it may not be impossible. Consideration as to the practical steps taken to mitigate the risk in the first place will be key.
There must also be regard as to whether employees are working under increased pressure and/or increased workloads. If so, there could be a knock-on impact on those employees’ psychological and physical wellbeing. It is clear that many businesses have decided to reduce their workforce, whether that be via redundancy or through use of the Government’s Coronavirus Job Retention Scheme. While such action may have been out of necessity, it is important to consider those employees still working. Careful thought should be given to ensuring that employees are not over-worked by putting in place a clear and concise procedure to enable employees to raise any concerns.
The same consideration should also be given to employees working from home. They are owed the same level of care as if they were on the business premises. Employers should assess whether those working from home are properly equipped to do their job and take steps to mitigate risks.
Along with claims from staff, an employer will also need to be aware of potential claims from clients/customers. Employers will be vicariously liable for any negligence of their employees. With respect to COVID-19, an employee may infect a client /customer while having a face-to-face interaction as their job requires or an accident occurs while an employee is covering another employee’s work when they are not trained to do so.
Being able to demonstrate that they have acted reasonably, documented their assessment and adopted relevant policies will be crucial in an employer’s defence to potential claims of this sought. Communication with employees will also be key and will assist in uncovering any issues that may be being faced.
It would also be prudent to check whether such claims would be covered under your employers’ liability insurance policy. An employer would not want to find themselves in a position where they are facing a claim and having to pay from their own resources if such events are not covered under their policy.
Shyam Mistry – Partner
“With many people being asked to return to work it is crucial that employers are appropriately prepared and have made the necessary arrangements for the health and safety of their employees. COVID-19 is an infectious virus and is rapidly spreading from person to person. Employers much ensure they do all that they can to minimise the risk to their employees.”
The merits of any defence to a claim is determined on the individual circumstances of each case. For guidance and advice in relation to an employers liability claim, please contact Shyam Mistry, Partner in our Personal Injury Department on 0208 951 6989.
Note: the information contained in this article is accurate at the time of publication on 18 May 2020. The remarks in this article are not a substitute for legal advice on the specific circumstances of any case