30 April 2020

That has become the mantra as we adjust to life and business under lockdown. Businesses across the globe are having to, well, perhaps not improvise, but certainly adapt to new ways of working in light of Covid-19.

What cannot be overcome, however, is an employer’s duty to take reasonable care for the health and safety of their employees.  This duty persists, even in these unprecedented times. 

If the duty is breached, the usual rules apply and the employer can be found liable to compensate an employee where there is a causal link between the breach and the employee’s injury/loss.

The question is, what practical steps can employers take now to maintain a robust defence in claims for personal injury which may later arise in the context of Covid-19.

Claims arising from infection

Covid-19 carries risk of infection and, for those still attending their usual workplace, the concern for their employers is that an employee who becomes ill with Covid-19 may claim that their infection was the fault of their employer.

A reasonable employer will ensure it monitors advice from government and other relevant sources to inform preparation of a suitable and sufficient risk assessment. Important considerations will include provision of PPE, maintaining social distancing in the workplace, providing handwashing/hygiene facilities, and arranging ‘deep cleans’ of the workplace.

Employers should review their risk assessments now to ensure that risk of infection is identified, with suitable control measures in place having regard to the nature of their business. If this cannot be demonstrated, the employer is at risk of being found in breach of duty and therefore at risk of paying compensation.

Nonetheless, the employee would require to prove that the breach caused their infection. For most workers, causation will be difficult to prove, given the numerous potential sources of infection.

Claims arising from working from home

For many businesses, the majority of employees are now working from home. Employers owe the same duty of care to homeworkers as they do to any employee and therefore require to demonstrate that the risk of physical/psychiatric injury to homeworkers has been considered in their risk assessments.

A reasonable employer will consider issues such as the risk of increased stress, musculoskeletal injuries caused by home workstations and whether staff have the appropriate equipment to work safely from home.

Important considerations will include keeping in touch with employees to provide sufficient support/supervision, providing information on setting-up home workstations, advising employees to take regular breaks and considering special equipment needed for individual employees.

Whilst the employee would still require to show a causal link between the breach and their injury, the causational hurdle in this type of claim could be overcome by the employee producing medical evidence.

Claims arising from diversifying roles

A reduced workforce through furlough, illness or self-isolation will place increased pressure on those still at work. Roles may be diversified to ensure ‘business as usual’, resulting in employees carrying out tasks they do not normally do or operating equipment they do not normally use.

A reasonable employer will ensure that employees whose roles have been diversified are appropriately trained and supervised in the usual way. A failure to do so will make a claim difficult to defend.

Closing Remarks

The above measures are not prescriptive and do not stop a claim for personal injury being made against your business. However, an employer who can demonstrate (i.e. document) that they adapted their risk assessments with suitable communications to their employees amidst the current pandemic should be well-placed to defend claims.

Furthermore, employees are under a duty to take reasonable care for their own safety. That requires employees to follow safety instructions from their employers. A failure to comply may strengthen a defence or, at the very least, provide a basis for a contributory negligence argument against the employee.

These are sensitive issues which require careful consideration and each case will turn on its own facts and circumstances. BTO is well-placed to provide support and advice to any businesses facing such claims.

Contact

Rhona McKerracher, Associate E: rmk@bto.co.uk T: 0141 225 5264