07 August 2020

As the lockdown imposed by the Covid-19 pandemic eases, it is noteworthy that the attitudes displayed towards risk appear to vary between extremes, particularly notable at that local microcosm of society, the local supermarket.

On the one hand, some shoppers, while stopping short of a full biological suit (possibly only because that well known online retailer is low on stock), make do with a visor, gauntlets and a 2 metre long stick to minimise the risk of transmission of Covid-19. At the opposite extreme, there are shoppers who don’t mind encroaching within the personal space of others, while not wearing a face mask. Askance looks are in order when they commence a fit of coughing.

It appears reasonable to suggest that this snapshot of society might reflect the attitudes of employees when there is a return to the workplace: the cautious and the cavalier. From the standpoint of an employer, any argument that employees should use their common sense, is unlikely to carry them far in defending a claim. More so than ever, employers must bear in mind that employees carry out their duties in furtherance of their employer’s goals, and the employer accordingly owes them a duty of care, even perhaps in circumstances where common sense ought to have been applied.

Forming the backbone of many a claim for personal injuries suffered in the workplace, is the failure to risk assess adequately, or provide suitable personal protective equipment (PPE). The issues in obtaining PPE for key workers such as NHS staff have been well documented and publicised and might reasonably be taken as an indication that employer’s liability claims arising from contracting the virus in the workplace, where lack of PPE is an issue, could become commonplace. How then should employers protect their staff and where litigation occurs, demonstrate that they have taken adequate measures?

You will recall that section 69 of the Enterprise and Regulatory Reform Act 2013 for the most part removes civil liability on the part of employers for breaches of health and safety regulations. The position prior to the 2013 Act coming into force was that employers could find themselves strictly liable, or liable where they could not demonstrate that they had taken reasonable steps to avoid breaching health and safety regulations. In certain circumstances, the Employer’s Liability (Defective Equipment) Act 1969 may be relied upon.

While health and safety regulations no longer confer civil liability, they are relied upon by Pursuers as effectively stating the ‘best practice’ to which employers should pay heed when considering the safety of their employees. While falling outside the scope of this article, an employer would do well to give consideration as to whether any self-employed contractors could be considered to be employees and act accordingly.

To recap then, claims by employees will succeed where they are able to convince the Court that a legal duty was owed, the duty was breached, and the breach led to the employee suffering a loss. How can employers protect their staff and prevent Covid19-related claims, or at least defend them successfully?

From the standpoint of defending any claim, evidence is key. It is unlikely to be adequate that a generic risk assessment and some generic training records exist. The risk assessment must be adequate and carefully considered in terms of the risks posed by tasks undertaken by employees working in the business. Given that some employees may have pre-existing health issues which place them at particular risk, employee-specific risk assessments may become the norm.

Training must be relevant. More to the point, records showing the actual content of the training are always desirable, as is a sign-off sheet confirming that training has been received and the employee made aware of the content of any risk assessment and any method statement.

In addition to carrying out risks assessments and providing training, a documented process detailing the procedures to be adopted in relation to whether or not employees can carry out their duties at home either fully or in part, flexible start times, traffic routes within offices and so forth, may assist matters.

Homework-stations should be risk assessed. The Personal Protective Equipment at Work Regulations 1992 provide that employers have duties to assess the suitability of PPE; maintain and replace it and provide training in relation to its correct use. It should not be assumed that employees will know how to properly wear a face mask, or indeed any other PPE. If employees are expected to interact with the public regularly, it will be vitally important to demonstrate that proper thought had been given to the risks associated with their duties, backed up with specific risk assessments and training.

Finally, while medical causation is likely to be a defence point and transmission of the virus may take place outside of the workplace, as the antics witnessed in supermarkets demonstrate, the test for civil liability is ‘on the balance of probabilities’. Where an employer has failed to risk assess duties, provide training and give consideration to the issue of PPE, they may find themselves on the back foot, in terms of breach of duty when defending a claim where the employee claims to have contracted the virus at work.

If you have any questions, please do not hesitate to contact Alistair Barbour, or your usual BTO contact.

Contact

Alistair Barbour, Associate E: awb@bto.co.uk T: 0141 225 5257