Back to Work
For obvious reasons, most of the public’s attention has centred on concerns about those working in health and social care, although a wider range of employers should pay heed to the risk. For example, those whose employees come into direct contact with members of the public as a result of their daily work. Employers should also ensure that they
- do enough to help their employees to work from home and only insist they go to work if necessary– or, worse still, have only insisted upon them going into work when it was necessary;
- have sufficient regard to risks to their mental health and wellbeing, arising from the new circumstances in which they are working, and the additional pressures that it might bring to bear
- plan properly, and assess risk suitably and sufficiently, when staff return to the workplace – at which point issues around workplace design, methods of working, office hygiene and other environmental factors will all need to be reviewed carefully.
The basic duty owed by an employer towards their employees is set out in Section 2 of the Health & Safety at Work etc Act 1974 It sets the bar high and COVID-19 has not changed that. The employer has a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work.
For practical purposes, employers owe similar obligations in relation to people (other than their employees) who may be exposed to risks to their health and safety arising from the way the employer conducts business.
An employer must do whatever can be done to address the risk, unless they can show that the necessary steps would have been disproportionately difficult, expensive or time consuming in the circumstances.
The Personal Protective Equipment at Work Regulations 1992, impose a general obligation upon employers to ensure that workers at risk are supplied with “suitable” PPE “…except where and the extent that such risk has been adequately controlled by other means which are equally or more effective”. Where multiple items of equipment are supplied they must be compatible with each other and the provision of any equipment should follow a suitable assessment to determine what will be required.
Even after the equipment has been supplied, employers must ensure that it is maintained (including being replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair – and they must ensure that employees receive such instruction, information and training as is adequate to enable them to understand the risks, to meet the purpose for which the equipment has been provided and to ensure that it remains appropriate for use.
It is for employers to ensure that employees use the equipment properly, but employees owe a concurrent duty to use the equipment provided in accordance with the instructions they receive.
More generally, of course, employers owe a duty under the Management of Health and Safety Regulations 1999 to undertake “suitable and sufficient” assessments of the risks to which their employees are exposed whilst at work, so that appropriate steps to manage the risk can be implemented. Such assessments should be re-visited in light of any change in circumstances that might materially affect the validity of the assessment.
Individuals at risk of prosecution
Individuals may also face action under existing legislation, notably if either: (1) they personally fail to take reasonable care for others whose health and safety might be affected by how they do their job or (b) they are in a senior role and relevant breach of duty by their employers can be shown to be attributable to their neglect or to have resulted from their consent or connivance – essentially turning a blind eye to the need to act upon what they knew or ought to have known.
Whereas corporate offenders essentially face purely financial penalties in most cases, guilty individuals can face imprisonment.
The Corporate Manslaughter and Corporate Homicide Act 2007 provides that an organisation will be guilty of the offence of corporate manslaughter if the way in which its activities are managed causes the death of a person to whom it owes a relevant duty of care – provided the death is caused by a gross breach of that duty.
Importantly, however, the Act goes on to make a number of important exclusions from the definition of a relevant duty of care. First, decisions made by a public authority around matters of public policy “including in particular the allocation of public resources or the weighing of competing public interests” fall outside the definition.
Furthermore, when dealing with emergencies, the way in which an organisation responds to an emergency does not form part of the relevant duty of care in so far as it relates to the way in which medical treatment is carried out, or decisions are made as to the order in which persons are to be given treatment.
It is important to note, however, that these exclusions do not apply to the organisation’s duty of care in so far as it is owed to its own employees, to other persons working for the organisation or to any duty owed as the occupier of premises. In other words, the underlying purpose of the exclusion appears to be that organisations providing emergency treatment will not be held to account if they decide to prioritise particular areas of treatment or classes of patients in ways which are subsequently criticised – but they are offered no relief in relation to their underlying obligations as employers and occupiers of premises.
Looking specifically at the health and social care sector, organisations could still find themselves under Police/CPS scrutiny under the 2007 Act if evidence gathered under investigation revealed gross failures that contributed to the death of an employee or resident, if it could be shown that the gross breach substantially resulted from failures by senior management to manage or organise the organisation’s affairs properly.
In the current climate, this issue most likely to be relevant will be senior management decisions concerning the provision of suitable PPE and/or allowing staff to work in conditions in which they (or residents in their facility) were exposed to the virus without such PPE (or relevant training) being supplied.
Again, every case must be considered on its own facts and it is suggested that, in the absence of culpable personal failings by senior management (being effectively tantamount to turning a blind eye to what they knew, or wilfully neglecting to ascertain and understand what was required) a prosecution for this offence is unlikely in respect of actions taken in the early stages of responding to this pandemic. However, as knowledge and awareness grows, it would be fair to say that expectations will rise, and a willingness to forgive or tolerate shortcomings will diminish.