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Martin Anderson
Martin Anderson,
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Employer's Liability and Coronavirus
04 May 2020

Employers have a legal duty of care to ensure their employees are reasonably safe whilst at work. This means that your employer has a duty to provide you with a safe place of work, a safe way of working, suitable equipment to work with, and safe and competent colleagues to work with.

If this does not happen, your employers could be liable for any injuries and losses that occur as a result. Potential risks that need to be considered include trips and slips, manual handling, defective equipment and exposure to dangerous chemicals. However, the current coronavirus pandemic has led to new risks for employees, which employers will need to manage very carefully. 

The Health Protection (Coronovirus, Restrictions) (England) Regulations 2020 contain various measures which need to be carefully considered by employers, including:

Regulations 4 and 5 mandate the closure of certain types of business, notably "closure of businesses selling food or drink for consumption on the premises"(although not hotels feeding guests via room service).

The Government has not asked all businesses to shut – indeed, they have stressed that it is important for business to carry on. 

Regulation 6 provides that during the emergency period, no person may leave the place where they are living without reasonable excuse.

This means that everyone must work from home wherever possible and businesses must take steps to ensure that their employees are able to do so. 

Of course, it is absolutely essential that some businesses remain open and that people are on the premises during working hours, such as supermarkets. However, even where it is not possible for employees to work from home, businesses must take steps to ensure that their employees and customers are protected as much as possible. 

As such, employers should continually keep abreast of the latest government advice and should carry out and continually update risk assessments and consider how best to minimise the risk of spreading infection. 

While it remains to be seen what will happen in any subsequent litigation against employers relating to failing to adequately protect their employees against the risk of infection, the following acts or omissions could lead to employees having a cause of action against their employers:

Failure to facilitate home working

The risks of infection are well known and the government have specifically stated that businesses and workplaces should make every possible effort to enable working from home as a first option. If this ignored and employees are compelled to come into work even though their job can be done from home, the employer is increasing the risk of their employees becoming infected. 

It seems fair to say that compelling employees to make unnecessary trips into the workplace would constitute a demonstrable failure in an employer’s duty to take reasonable care for the safety of its employees.

Failure to follow social distancing guidelines

Where working from home is not possible, workplaces should make every effort to comply with the social distancing guidelines set out by the government.

The government guidance states that workplaces need to avoid crowding and minimise opportunities for the virus to spread by maintaining a distance of at least 2 metres between individuals wherever possible. This advice applies both to inside the workplace, and to where staff may need to interact with customers.

Employers should remind staff to wash their hands regularly using soap and water for 20 seconds and particularly after blowing their nose, sneezing or coughing. Where facilities to wash hands are not available, hand sanitiser should be used. 

In some industries, this may not always be possible. The government guidance states that, where social distancing guidelines cannot be followed in full in relation to a particular activity, businesses should consider whether that activity needs to continue for the business to operate. If the activity cannot be avoided, employers must take all mitigating actions possible to reduce the risk of transmission between their staff.

For example, retailers should manage entry into their stores, only allowing a limited number of people inside at any given time.

Signs should be displayed, asking customers with symptoms not to enter the store, and to remind both staff and customers to always keep 2 metres from other people, wherever possible.

Failure to prevent infected employees from coming into work

The government guidance makes clear that any member of staff who develops symptoms of coronavirus (COVID-19) (a new, continuous cough and/or a high temperature) should be sent home and stay at home for 7 days from onset of symptoms. If the member of staff lives in a household where someone else is unwell with symptoms of coronavirus (COVID-19) then they must stay at home in line with the stay at home guidance.

Further, in order to protect employees, employers should remind everyone daily to only come into work if they are well and no one in their household is self-isolating.

It seems likely that merely relying on employees to report any symptoms will be insufficient. There is, of course, a risk that employees in a precarious financial situation may continue to work even if they or someone in their household has symptoms. The guidance states that staff may be feeling anxious about impacts on livelihood and that staff be fully briefed and appropriately supported at this time. 

It is stated as being good practice to make sure managers know how to spot symptoms of coronavirus (COVID-19) and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace is potentially infected and needs to take the appropriate action.

While there are no concrete examples given, it seems to suggest that proactive steps should be taken to ensure that employees that may be infected are identified and are supported to stay at home. 

Failure to protect vulnerable employees

The NHS guidance states that people at very high risk from coronavirus include people who:

  • have had an organ transplant
  • are having chemotherapy or antibody treatment for cancer, including immunotherapy
  • are having an intense course of radiotherapy (radical radiotherapy) for lung cancer
  • are having targeted cancer treatments that can affect the immune system (such as protein kinase inhibitors or PARP inhibitors)
  • have blood or bone marrow cancer (such as leukaemia, lymphoma or myeloma)
  • have had a bone marrow or stem cell transplant in the past 6 months, or are still taking immunosuppressant medicine
  • have been told by a doctor they have a severe lung condition (such as cystic fibrosis, severe asthma or severe COPD)
  • have a condition that means they have a very high risk of getting infections (such as SCID or sickle cell)
  • are taking medicine that makes them much more likely to get infections (such as high doses of steroids)
  • were born with a serious heart condition and are pregnant

The government guidance states that members of staff who are vulnerable or extremely vulnerable, as well as individuals whom they live with, should be supported as they follow the recommendations set out in the guidance on social distancing and shielding respectively

While this appears quite vague, it would seem reasonable to infer that consideration should be given as to what can be done to prevent the need for vulnerable members of staff coming into work. 

If it is possible for any work to be done from home, it would seem reasonable to vulnerable employees to be given priority when allocating such tasks. If this is not possible, there may be a duty to consider if there are any jobs that they can do which, even if they require attendance on site, minimise the chances of coming into contact with customers or fellow employees.

The Government has introduced the Coronavirus Job Retention Scheme (CJRS) in an effort to support employers whose operations have been severely affected by coronavirus ( the ‘furlough’ scheme). Under the CJRS, the government will reimburse employers for 80% of an employee’s usual monthly pay (up to a cap of £2,500 per month per employee). 

It may be the case that employers should consider whether it is possible to ‘furlough’ vulnerable employees in order to protect them from the risk of becoming infected in the workplace or when travelling to and from work. 

Are employees likely to be able to make claims against their employers relating to coronavirus?

Of course, this is an unprecedented situation and it remains to be seen whether any claims of this nature are successful. 

In terms of bringing a claim against an employer for causing infection, the difficulty is likely to be establishing causation. That is to say, given how widespread the virus has become, it will be very difficult to establish that the infection occurred in the workplace rather than anywhere else. 

This is a problem with asbestos related mesothelioma cases. If a claimant has been exposed to asbestos in multiple locations, it is not possible to say definitively which source of exposure is responsible for the claimant contracting mesothelioma. 

The courts have therefore allowed a claimant to make a claim against a defendant if they can demonstrate that the asbestos exposure they suffered at work led to a ‘material increase‘ in the risk of the claimant contracting mesothelioma. 

Whether the courts take a similar approach in any future coronavirus cases remains to be seen.

Timing may also be an issue in successfully bringing a claim against an employer. If it can be shown that the infection is likely to have occurred before The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, this may constitute a successful defence for an employer against any claim made by the employee. 

It may also be the case that claims arise due to injuries caused by steps taken by employers in response to the virus. 

If someone is redeployed to a new role and gets injured due to insufficient training, this could give rise to a claim against their employer. For example, an employee may be required to operate machinery which they are unfamiliar with. If adequate training is not provided and this leads to the employee suffering an injury, they may have a claim against their employer.

Tasks may be reallocated in the event that some employees are unable to work due to them having to shield or self isolate. This may cause increased stress and, if it is not managed carefully, employees may suffer psychological injuries as a result. 

If employers do not manage the workloads of employees and take steps to ensure that any increased work is distributed as evenly as possible among their remaining employees, this could give rise to claims being made for stress at work.

There are, of course, unprecedented times for us all and it is to be hoped that employers take all reasonable steps to protect their employees. Further guidance on what steps need to be taken can be found here.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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