Employers Liability claims in relation to COVID-19

As restrictions ease over the coming months businesses should be aware of potential Employers Liability claims in relation to COVID-19. This useful guide for employers includes preventative measures businesses can take to help manage these types of claims.

Working from home

It was supposed to be temporary, then it became less temporary, now many businesses may continue to offer the option to their employees. In some cases there are clear benefits in terms of employee satisfaction and flexibility, however the responsibilities of employers don’t change. They must still ensure the equipment used by their employees meets all relevant health and safety standards as set out by the Health and Safety Executive (HSE). Their staff should be provided with the right equipment and tools to work comfortably and safely at home.

Working from home considerations

• Do employees have the appropriate equipment?

  • Have workstation assessments been carried out and appropriate action taken?

  • Are employees encouraged to take regular mobility breaks?

  • Are managers in regular communication with staff to minimise feelings of isolation?

  • Are procedures in place for employees to report mental health issues and get support?

What to look out for: we expect to see an increase in liability claims for musculoskeletal disorders resulting from working from home if display screen equipment (DSE) guidance has not been adhered to.

Emerging risks

DAC Beachcroft view

The Industrial Injuries Advisory Council reported on March 2021* (based on figures to December 2020) that the most ‘at risk’ sectors for COVID-19 were social care, nursing, transport workers, food processing, retail and security. This was based on information gathered from Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) reports. It is likely that claims activity will be seen in these sectors in the first instance. However, it is possible that the data will change when new information from the UK’s second wave becomes available.

Potential claim triggers

An employer should notify their insurer if:

• the Health and Safety Executive or an Environmental Health Officer are making enquiries into a work-related accident that could lead to a prosecution against them

• an employee has died and a Coroner’s Inquest is being carried out to establish the cause of death

• their business gains media attention and the press make enquiries regarding media coverage

• they are aware that an employee who has already made a formal claim on another matter now has COVID-19

• they have had requests or enquiries in relation to COVID-19 safety in the workplace – whether from a trade union, employees, press or customers

They have received a formal complaint in relation to COVID-19 from an employee or customer (for example, claiming that a staff member wasn’t wearing a mask) specifying the time and date when this happened

• an employee is in hospital or has died as a result of COVID-19

• they have made employees redundant

• they have had any enquiries from claimant solicitors

• they have had a COVID-19 outbreak in their workforce

• staff have made complaints regarding COVID-19 safety at work

• they have been unable to provide suitable PPE for their staff

• an employee has mentioned they are suffering with long COVID-19

• a trade union has been involved.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR*) mean businesses must report serious workplace accidents, occupational diseases and specified dangerous occurrences. When it comes to COVID-19, it’s especially tricky to decide what should (and shouldn’t) be reported, since occupational exposure is hard to establish.

Some things to consider when deciding

• Have the employee’s normal work activities or a specific incident increased their risk of exposure?

  Havetheyhaddirectcontactwithaknowncoronavirushazardwithoutcontrolmeasuresbeinginplace? • Hasamedicalpractitionerhighlightedthesignificanceofwork-relatedfactorsincontractingthevirus?

• What to look out for: RIDDOR reports can result in, among other things, fees, fines and prosecution, so it’s important to take steps to minimise the risk that employees could be exposed.

Employers should notify their insurer under RIDDOR if:

• an accident or incident at work has, or could have, led to the release or escape of COVID-19 – this must be reported as a dangerous occurrence*

• an employee has been diagnosed with COVID-19, attributed to an occupational exposure – this must be reported as a case of disease*

• an employee dies as a result of occupational exposure to coronavirus –

  this must be reported as a work-related death due to exposure to a biological agent*

Document everything

Document PPE availability and any attempts to secure it. Keep a detailed record of all staff training and procedures and record all communications and decision-making rationales, including reference to the governmental guidance at the time.

Maintain records

Keep hold of names and contact details for all employees and agency staff, rotas, changes in care rendered necessary and external visitor logs.

Communicate and engage

A policy decision an employee helped to shape is one they’re less likely to criticise, so involve and engage employees in these decisions where possible.

Review

Take the time to go back and review collated documents, such as risk assessments and care plans, and contextualise them to explain the decision making while it is still memorable.

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Have any questions? please don't hesitate to contact one of our team

Matthew.collins@ascendbrokingold.co.uk  |  Office: 01245 449061  |  Mobile: 07901 551965