Shyam Mistry says that relaxation of the lockdown brings new challenges to employers and employees
Shyam Mistry – Partner
“The global pandemic has given rise to many challenges for employees and employers. The health and safety of employees should always have been at the forefront of every businesses’ agenda; however it has never been as important as it is today to rethink the way we work and to scrutinise our internal and external procedures. Employers must be committed to doing all that they can to ensure their employees are safe.”
Boris Johnson’s recent statement recommended that employees should try to return to work where they are unable to work from home. This will, hopefully, boost the economy. However, guidance on the health and safety of workers is currently lacking. Is the Government prioritising an economic boost over the health and safety of the public? A discussion for another day, perhaps.
Meanwhile, with many now returning to work, I have been looking at the potential risks and ramifications involved in doing so and what rights an employee has.
Is it safe to return to work? Have my employers done everything possible? What if I contract COVID-19 whilst at work? Can I make a claim against my employers?
These are some of the key questions everyone is asking. There is no doubt that the COVID-19 pandemic has weighed heavy on the minds of both employers and employees. There is now a real need for employers to act robustly to protect their employees returning to work.
Section 2 of the Health and Safety at Work Act 1974 (HSWA) states: “It shall be the duty of all employers to ensure, so far as is reasonably practicable, the health and safety and welfare of all their employees when they are at work”.
Regulation 3 of the Management of Health & Safety at Work Regulations 1999 (MHSWR) requires every employer to make a suitable and sufficient assessment of:
What should you expect in the workplace?
Employers are under a duty to ensure that they have assessed any risk to your health and safety and made suitable arrangements to guard against this.
The COVID-19 pandemic has necessitated employers to review and implement significant changes in their workplace policies to ensure that employees are protected as much as possible. If you are returning to work you may wish to ask your employer for their health and safety policy specifically with respect to the COVID-19 pandemic. Of course, the policies to be put in place and the actions required will differ between businesses, but some considerations would be:
If your employer is unable to demonstrate that they have made appropriate arrangements and, as a result, you suffer an injury – for example, you become infected – then would you have a claim?
As mentioned, you will need to demonstrate that your employer has failed to assess the risk and put appropriate measures in place to guard against such identified risks. This will establish that there has been a breach of the duty owed between an employer and employee.
However, this will not, in itself, provide you with an automatic claim that is guaranteed success. The next criteria to address, and possibly the one which will cause much difficulty, is proving whether that breach made a material contribution to your injury – this is what I like to call the all-important ”causation conundrum”.
COVID-19 is notoriously highly infectious and there are many ways in which any one person can contract the virus. Owing to the numerous sources of infection, it may be difficult to prove that your condition was: a) contracted at work, and b) caused by your employer’s negligence. But, this is not to say that a claim is impossible and careful consideration will need to be given to the circumstances.
You may have come across recent media reports of the unfortunate death of a UK rail worker who was spat at while on duty. On the morning of 22 March, Ms Belly Mujinga was working at Victoria Station, London when a man, who claimed to have COVID-19, spat and coughed at her and a colleague. A few days later, both women became infected with the virus. In this case, her employer, Govia Thameslink, failed to provide any appropriate PPE even when they were aware that she had an existing respiratory problem.
The key question turns on whether the employer is liable for Ms Mujinga’s contraction COVID-19. The source of the infection is, on the balance of probabilities, likely as a result of being spat and coughed upon while at work. There are strong grounds for believing such a case would succeed in any claim against the employer.
Along with the risk of infection, there is also a risk that many employees will struggle psychologically and physically with the increased stress and pressures of work. Many employers have decided to reduce their workforce, whether by redundancy or through use of the Coronavirus Job Retention Scheme. As a knock-on effect of these changes in the workforce, those still employed may be being given additional work and responsibilities which may lead to psychological or physical distress and injury.
Again, while such claims are sometimes difficult to prove, employees should ensure that there is a clear line of communication with the employers so that they are aware of any potentially issues with your psychological and physical well-being.
If you can establish the duty, a breach of that duty and that the breach caused the injury complained off then there are good prospects of a claim being successful.
The merits of any case 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 Axiom Stone’s 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.