COVID-19: How to reduce the risk of employers’ liability claims
As the country gradually moves towards the ‘new normal’, it is inevitable and understandable that employers will now be focusing on implementing the necessary changes to their working practices, allowing them to operate not only safely but also profitably. Business owners and, indeed, their insurers will also have in mind the risk of claims if employees develop COVID-19.
Whilst it is fair to surmise that any claim presented on the basis of the employer’s negligence would be difficult to prove when we are dealing with a pandemic expected to touch the lives of a significant proportion of the population, it is still important that businesses address both the direct and indirect risks which the pandemic has presented.
Below we have set out a number of considerations which employers should bear in mind in order to minimise the risk of a claim being made, or at least provide the basis of a defence if one is made.
Follow the advice
Government, scientific and medical research is ongoing and evolving on a regular basis. Businesses should monitor the advice coming from these sources, as well as any trade union or sector-specific advice provided by industry experts.
The advice could prove very useful when it comes to undertaking and implementing suitable and sufficient risk assessments. A business that is able to evidence the fact that it followed all relevant and up-to-date advice will be in a much stronger position to defend a claim than one that has paid little or no regard to the same.
Although the timing and nature of official guidance from the Government, Public Health England and regulators such as the Health and Safety Executive will evolve, employers must always carry out a COVID-19 risk assessment. Identifying the risks would be your first priority and will allow you to assess your level of exposure and determine the control measures that are required. Whilst it may sound obvious, you should also take the appropriate action arising from the assessment and ensure that all those impacted are aware of it. The findings should then be recorded and regularly reviewed in order to evidence your continuous action and improvement.
It should be noted that employees also have a duty to take reasonable care of their own health and safety and that of their co-workers. This duty extends to following instructions given which are designed to protect them and others. Therefore, if you ensure that employees are fully aware of the measures being implemented by the business, then any flagrant disregard to the policies and procedures may provide a defence to any claim or at least support a submission of contributory negligence.
As well as providing the necessary guidance, it is vital that you record the instructions provided and obtain written confirmation that they have been considered and understood by all your employees. A lack of training and guidance is often the primary driver for an employers liability claim and without documented evidence supporting the provision of training it would be difficult to counter any such allegations.
Whilst you must consider the sector-specific guidance, the following legal principles should be also be considered by all business owners/employers:
·Providing safe premises and a safe place to work – Social distancing measures should be implemented where possible and any unavoidable contact, for example with those involved in health and social care or the childcare sector, should be for the shortest duration possible. By signposting separate entrances and exits and having a one-way flow of movement, you will be reducing the risk of contact. The premises must undergo a regular deep clean of the workspaces and shared facilities. Above all, it is vital that all action taken is accurately recorded in order to evidence the safety measures in place.
·Safe plant, materials and equipment – Employers should ensure that they provide appropriate PPE such as face coverings, sanitisers and wipes. Employees must also have access to adequate handwashing facilities. Staff should be not only encouraged to maintain personal hygiene but should also be afforded the time to do so properly. Staff members who work with equipment should be briefed on the safe use of such equipment.
·Competent staff as colleagues – Clear instructions should be given to employees that Government advice about self-isolation and shielding must be adhered to at all times, even if it results in a change to their working hours or salary. If some members of staff are failing to follow the guidelines and putting others at risk then you may be held vicariously liable for their actions. Therefore it is vital that the safety measures are enforced by the management.
·Safe system of work and safe working practices – COVID-19 also has the potential to reduce the number of employees undertaking their ordinary duties. This may result in a significant increase in the workload of other staff which may increase the risk of stress and physical or psychological issues. Employers will need to plan and monitor the work accordingly and react to any changes as and when they occur to mitigate the risk and minimise the chances of a claim.
With increasing numbers of people working from home, it must be remembered that such employees are entitled to the same level of care as those on the employer’s premises. It is therefore crucial that home workers are properly equipped to fulfil the tasks expected of them. This may include providing additional IT facilities, home-office equipment or simply more regular contact to check on their mental health and wellbeing.
As an employer, the day-to-day operations of your business will inevitably change but your legal responsibility to protect employees and non-employees from risks to their health and safety still remains.
In summary, it is vital that businesses begin to think about the future now by acting in compliance with the existing health and safety duties, as well as the developing guidance from the Government and relevant authorities. Failure to do so will not only risk intervention and possible enforcement action from the HSE, but it may also give rise to legitimate EL claims, all of which will inevitably impact upon the future viability of your business, as well as your insurance policies and premiums.