The outbreak of COVID-19 has brought into sharp focus issues of workplace safety and the duties that employers owe to their employees, as well as to the wider public. Confusion and concern in industries such as construction, healthcare and aviation have hit the headlines as employers grapple with this unprecedented situation. Specifically the concern is that employers are not always taking sufficient steps to protect their employees and that as a result workers are being unnecessarily affected by the virus.
In this update, we provide a re-cap of employers’ obligations, as well as a general update on health and safety law and enforcement.
Employers’ health and safety obligations
Employers’ overriding duty
The Health and Safety at Work etc. Act 1974 (“HSWA”) imposes a duty on every employer to ensure the health, safety and welfare at work of all their employees, as well as those not in their employment (such as members of the general public) who may be affected by their business. These obligations are broad in scope and so commercial landlords for example can have duties in relation to the safety of those using their premises. In relation to real estate more generally, the Occupiers Liability Acts will also be relevant when considering obligations owed to others.
The duties contained in the HSWA are qualified by the principle of “so far as is reasonably practicable”. As summarised by the Health and Safety Executive (“HSE”):
“In other words, an employer does not have to take measures to avoid or reduce the risk if they are technically impossible or if the time, trouble or cost of the measures would be grossly disproportionate to the risk.”
That said, any decision should be weighted in favour of health and safety as there is a presumption that the employer should implement the relevant risk reduction measures. It is therefore not a simple exercise of balancing costs and benefits; risk-reduction measures are expected to be implemented unless they involve grossly disproportionate sacrifices.
Ongoing management of risks
In addition to the HSWA, further obligations relating to health and safety can be found in numerous Regulations. Some of the most important are:
- The Management of Health and Safety at Work Regulations 1999, which require employers to undertake a risk assessment of their business, which must then be regularly updated to reflect any change in circumstances.
- The Construction (Design and Management) Regulations 2015, which impose specific obligations in relation to health and safety on the various parties to a construction project (including the client, principal designer, principal contractor and other contractors).
- The Control of Substances Hazardous to Health Regulations 2002, which in contrast are not industry specific, but instead impose obligations in relation to the storage and use of hazardous substances and controlling infections at work.
- The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013, which amongst other things require the reporting of workers being diagnosed with a disease where there is reasonable evidence that it was caused by exposure at work.
The application of all these Laws and Regulations to COVID-19 needs to be considered. The presence of the virus creates risks for workers, and employers need to have formulated strategies and action plans to minimise that risk. For many employers the solution has been to close premises and furlough staff but for companies providing essential goods or services that may not be an option.
Consequences of getting it wrong
Health and safety legislation is enforced by the HSE or the relevant local authority depending on the main activity carried out at any particular premises. Infringement is a criminal offence and a successful prosecution may result in an unlimited fine and/or imprisonment. This is the case even where no harm results from the offence – there only has to be a risk of harm.
Recent enforcement action has shown that fines can be significant – in 2019 Valero Energy UK Ltd was fined a total of £5 million in relation to an explosion at its Pembroke refinery. In addition, the relevant authorities have shown themselves to be increasingly active and there have already been a number of high profile enforcement actions in 2020, including a major grocery retailer being fined £733,333 in relation to an incident resulting from liquid that had leaked from refrigerator units and should have been able to drain away.
In addition to criminal sanctions, breaches of health and safety law also expose employers to negligence claims brought by employees or other affected third parties. However, by meeting your responsibilities under health and safety laws you will considerably reduce the risk of being found negligent in a civil action.
The HSE has made it clear that despite the COVID-19 crisis:
“…compliance with occupational health and safety legal requirements remains with duty holders and HSE will continue its regulatory oversight of how duty holders are meeting their responsibilities in the context of the current public health risk and based on our available regulatory capacity.”
Whilst the HSE has decided to scale back certain of its functions during this time, they have confirmed that they will continue to investigate reported concerns from the workforce or the public where people are being exposed to risks from work activities.
It is therefore vital that employers carry out, and continuously update, risk assessments to identify the extent to which they could be exposing individuals to risk of infection and what could be done to reduce those risks. Ensuring compliance with Government guidelines (such as its recently published guidance on social distancing in specific sectors) will assist employers in achieving this. However where social distancing is not possible, serious consideration needs to be given to whether the activities can be achieved through alternate means or whether additional protective measures might be required. Whether the Government has designated workers as ‘key workers’ will play an important role in this assessment.