Published: 03/07/20

As the COVID-19 lockdown eases further from 4^th July 2020 and subsequently, more businesses will be able to recommence operating, or operating closer to how they did pre-lockdown.  As this adaptation takes place, employers will be keen to ensure the safety of their employees and members of the public and understand the risks if they fail to do so.

What duties do employers and others have to control risks relating to COVID-19 at work?

The Government and Health and Safety Executive (“HSE”) have made it clear that businesses will be regulated under existing health and safety legislation for risks to safety posed by COVID-19 at work.  In its guidance regarding making workplaces “COVID-secure”, the HSE says that “as an employer, you must protect people from harm.  This includes taking reasonable steps to protect your workers and others from coronavirus”.

Dating back to 1974, the Health and Safety at Work etc. Act (“the Act”) clearly did not have the COVID-19 pandemic specifically in mind when it was enacted.  It places duties on employers to ensure the health, safety and welfare of employees in connection with work.  Employers and the self-employed are also obliged to conduct their businesses in a manner that does not expose the public to health or safety risks.  Importantly, these duties are both qualified by the phrase “so far as is reasonably practicable” (a concept of balancing risk and cost, analogous to the pandemic response globally).  The Act also places responsibilities on employees to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work.

The Act creates a reverse burden of proof such that, in any prosecution, it is for a defendant to prove that they did all that was reasonably practicable to satisfy these duties.

Is COVID-19 a health and safety risk at work?

Although the HSE’s analysis is not determinative, it considers COVID-19 to be a “substance hazardous to health” by virtue of it falling within the definition of a “biological agent” under the Control of Substances Hazardous to Health Regulations 2002 (“COSSH”) i.e. “a micro-organism, cell culture, or human endoparasite, whether or not genetically modified, which may cause infection, allergy, toxicity or otherwise create a hazard to human health”.

COSHH states that “a reference to an employee being exposed to a substance hazardous to health is a reference to the exposure of that employee to a substance hazardous to health arising out of or in connection with work at the workplace” (Regulation 2(2)).  The relevant Approved Code of Practice states that “the general duties of COSHH apply to incidental exposure to, and deliberate work with, biological agents.  However, COSHH does not cover a situation where, for example, one employee catches a respiratory infection from another.  This is because regulation 2(2) specifies that COSHH only applies in those circumstances where risks of exposure are work related, and not those where they have no direct connection with the work being done” (emphasis added).

The HSE’s web pages provide guidance regarding ‘work-related’ exposure in the context of dealing with the risks of pandemic influenza.  Whilst research into COVID-19 indicates that it may be more contagious and have a higher mortality rate than influenza, the HSE’s comments are relevant:

“Pandemic flu is first and foremost a public health matter.  There are, however, clear health and safety requirements (COSHH… ) to protect workers who come into contact with infectious micro-organisms such as the influenza virus either as a direct consequence of their work e.g. those who carry out research work on the virus, or else may be exposed in the course of their work e.g. healthcare workers caring for infectious patients …COSHH does not cover employees who are exposed to a disease, which is in general circulation and so may happen to be in the workplace as well”.

It is currently unclear how the HSE is seeking to differentiate COVID-19 from other diseases in general circulation.  For the majority of employers, a risk of exposure to COVID-19 is not created by its work activities; it is a disease common in the community and, whilst it may exist in workplaces, employees are similarly exposed to a risk outside of work.  Accordingly, there may be challenges to the use of health and safety legislation to address COVID-19 risks.  It would not be the first time that legislation has been inappropriately used during the rush and pressure of the pandemic (every single prosecution under the Coronavirus Act 2020 was recently withdrawn).

This may appear to be an overly technical analysis when considering the pressing need for there to be regulation in place to control the risks of the current pandemic.  However, the existing legislation sets the compliance bar high with stringent penalties in default (see below) and does not appear to have been previously used in this way.  In view of the constantly evolving guidance to keep up with emerging knowledge regarding a novel, complex and challenging virus, it is understandable that there would be some concern.  Employers will reasonably worry that with Governments around the world, with access to leading experts, struggling to respond and making stark U-turns in their strategies to deal with the pandemic, they may be viewed unduly harshly with the benefit of hindsight.

Are there any indirect health and safety risks at work due to COVID-19?

In addition to the risks posed by exposure to COVID-19, there are compliance risks from workplace changes triggered by COVID-19, for example a move to homeworking where possible.  If employers disregard the need to look after the safety of workers because they are not on their premises (for example, failing to carry out occupational health risk assessments or to control the risks of work-related stress) in relation to any longer-term changes, this could prompt investigations and enforcement action.

What do employers need to do to ensure COVID-19 health and safety compliance?

This article focusses on the risks of enforcement action for breaches of the legislation, but at a high level, the HSE’s web pages contain guidance on complying with health and safety duties, including regarding COVID-19.  The Department of Health & Social Care and Public Health England (PHE) are leading the UK Government response to the pandemic and there is more extensive industry and sector specific COVID-19 guidance available on the Government web pages.

The HSE’s guidance refers to making workplaces “COVID-19 secure” i.e. “designed to help you make your work and workplace safe”.  The concept of making a workplace “safe” is problematic in the context of a risk which is not currently fully understood (for example, what proportion of cases are asymptomatic and in what settings is spread more likely?).

The Government web pages refer to “5 steps to working safely”.  The first step is predicable to health and safety practitioners; carry out a COVID-19 risk assessment (a template risk assessment is available on the HSE website).  The remainder of the steps relate to avoiding or controlling the risk:

“2. Develop cleaning, handwashing and hygiene procedures;

3. Help people to work from home;
4. Maintain 2m social distancing, where possible; and
5. Where people cannot be 2m apart, manage transmission risk”.

The available guidance is indicative of what is reasonably practicable, such that any deviation would require justification.  Businesses will need to carefully monitor the evolving guidance in this fluid situation to ensure that they remain compliant.

Do employers need to make a report under RIDDOR as a result of COVID-19 exposure?

The usual trigger for an HSE investigation is a report under The Reporting of Injuries, Disease and Dangerous Occurrences Regulations 2013 (“RIDDOR”).  These regulations require that, amongst others, employers report certain dangerous occurrences (near misses), accidents and diseases (including occupational diseases and diseases attributed to an occupational exposure to a biological agent).

The HSE has accepted on its website that these are “not easy criteria to apply in the unusual circumstances presented by the coronavirus (COVID-19) outbreak”.  The HSE’s guidance on reporting of COVID-19 states that a report should be made when:

• “an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence.
• a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease.
• a worker 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”.

The HSE has recently provided further guidance which expands on what amounts to reasonable evidence of occupational exposure:

“When deciding if a report is required, the responsible person must make a judgement, based on the information available, as to whether or not a confirmed diagnosis of COVID-19 [this can be a lab test, rather than a registered medical practitioner’s written diagnosis] is likely to have been caused by an occupational exposure, i.e. whether or not there is reasonable evidence that a work-related exposure is the likely cause of the disease. Whilst this should be considered on a case by case basis, there are some general principles which can assist in making this judgement”.

The HSE’s guidance goes on to say that there must be reasonable evidence “linking the nature of the person’s work with an increased risk of becoming exposed to coronavirus” (emphasis added) and that factors to take into account when making this decision could include (this is not an exhaustive list):

• “whether or not the nature of the person’s work activities increased the risk of them becoming exposed to coronavirus?
• whether or not there was any specific, identifiable incident that led to an increased risk of exposure?
• whether or not the person’s work directly brought them into contact with a known coronavirus hazard without effective control measures, as set out in the relevant PHE guidance, in place such as personal protective equipment (PPE) or social distancing”.

Additionally, the HSE’s guidance states that “for an occupational exposure to be judged as the likely cause of the disease, it should be more likely than not that the person’s work was the source of exposure to coronavirus as opposed to general societal exposure”.  The HSE admit that “such cases may not be easy to identify when COVID-19 is prevalent in the general population” and state that “work with the general public, as opposed to work with persons known to be infected, is not considered sufficient evidence to indicate that a COVID-19 diagnosis is likely to be attributable to occupational exposure”.

For a death to be reportable under RIDDOR there needs to be “reasonable evidence that the death was caused by an occupational exposure to coronavirus”.

With the prevalence of the virus, the HSE appears wary of over-reporting.  The guidance states that “employers do not need to conduct extensive enquiries in seeking to determine whether a COVID-19 infection is work-related” and should rely on “the information available”.  The guidance discourages precautionary reports.

Accordingly, whilst the precise parameters of what amounts to reasonable evidence of occupational exposure remain unclear – for example, where the boundary between mere presence at work and work of a nature which increases the risk of exposure lies – it appears most likely that the reporting obligations would be triggered by, for example, incidents involving hospitals and research facilities working with COVID-19.  However, employers will need to work through the guidance and apply it to the specific facts in each case.

How else could regulators find out about potential COVID-19 related breaches?

The HSE can carry out ‘spot checks’ i.e. inspections of workplaces using their existing powers under the Act.  Inspections may be triggered by complaints made by workers to the HSE or press reports of non-compliance.  Inspections are likely to be focussed on high-risk sectors, for example where there have been previous outbreaks, such as meat-processing plants or clothes factories.  Instances of social distancing not being followed, or inadequate hygiene conditions, could be observed or reported by employees during any such inspection.

What enforcement action can be taken against corporates and individuals as a result of COVID-19 exposure?

An HSE inspector can issue an improvement notice if they believe that a relevant statutory provision is being contravened or has been contravened and this is likely to continue or be repeated.  The employer is required to remedy the situation within a specified period.

An HSE inspector can issue a prohibition notice if they believe that activities carried on or likely to be carried on involve or will involve a risk of serious personal injury.  Prohibition notices require the employer to cease carrying out the relevant activities and, depending on the activities prohibited, this may lead to the closure of a business until the notice is discharged.  During a Work and Pensions Committee (WPC) hearing on 12^th May 2020, the CEO of the HSE, Ms Albon, stated that a prohibition notice would be issued where the measures implemented were considered to fall “so, so significantly short of what was acceptable that [the inspector] concluded that [the workers] were in… imminent risk of serious harm”.  A prohibition notice either requires that the employer remedies matters immediately, or it may be deferred for a specified period.

The contravention of an enforcement notice is an offence and can result in prosecution.  Enforcement notices can be appealed to the Employment Tribunal and we may see challenges on the basis of the evolving understanding of the risks posed by COVID-19, as well as due to the use of health and safety legislation in the context of a community acquired disease (see above).

If convicted of the main health and safety offences under the Act, corporates face a maximum penalty of a fine without upper limit.  If offences by corporates are committed with senior officers’ consent or connivance or are attributable to their neglect, these individuals themselves can be prosecuted and, if convicted, fined or imprisoned for up to 2 years.  Offences committed by individual employees face the same penalties.

Whilst harm being caused is often the trigger for a health and safety investigation and prosecution, it is not a necessary ingredient of the offences; they relate to an exposure to a risk of harm.  Prosecutors would therefore not need to prove that breaches caused cases of COVID-19, only that they exposed individuals to a risk of harm.  Actual harm being caused is relevant at the sentencing stage and prosecutors are therefore likely to attempt to obtain any relevant evidence.  This may prove difficult in some instances; for example, it may be unclear whether an employee contracted COVID-19 in the workplace or during unofficial social work events, such as drinks after work.  Contract tracing systems could provide evidence of exposure mechanisms.  However, the UK is currently relying on a manual system; the electronic app is delayed and is unlikely to be available soon.

In addition to offences under health and safety legislation, employers could be prosecuted for corporate manslaughter.  Under the Corporate Manslaughter and Corporate Homicide Act 2007 (“CMA”), an organisation is guilty of an offence if the way in which its activities are managed or organised causes the death of a person and amounts to a gross breach of a relevant duty of care.  The way in which its activities are managed or organised by its senior management must be a substantial element of the breach.  The CMA contains various exclusions to relevant duties of care which cover, for example, decisions made by public authorities in relation to matters of public policy and the manner in which certain listed organisations respond to emergency circumstances.

Individuals cannot commit the offence of corporate manslaughter, but senior officers and other individuals remain liable of being prosecuted under health and safety legislation and for gross negligence manslaughter.

In order for there to be a prosecution for any offence, prosecutors need to consider if there is a reasonable prospect of conviction evidentially.  If so, this does not necessarily mean that a prosecution will follow; prosecutors must also consider whether a prosecution is in the public interest.

Prosecutors must currently have regard to the ‘Coronavirus: Interim CPS Case Review Guidance – Application of the Public Interest Covid-19 crisis response’, dated 14^th April 2020 (available at: https://www.cps.gov.uk/legal-guidance/coronavirus-interim-cps-case-review-guidance-application-public-interest-covid-19), which applies as a result of the COVID-19 pandemic.  This interim guidance reminds prosecutors of the unprecedented challenge the criminal justice system is facing and requires them to bear this in mind when considering if a prosecution is a proportionate response as part of the public interest test.

How likely is a prosecution for a COVID-19 related breach at work?

It is to be welcomed that to date employers appear to have been given some degree of regulatory leeway if they act in a way which is construed to be contrary to the guidance.  The HSE’s comments and approach to enforcement to date appear positive; during the WPC hearing in May 2020, the HSE indicated that employers were being given the opportunity to correct mistakes brought to their notice through informal advice.  Following the WPC hearing, the HSE confirmed in a letter dated 30^th June that only two improvement notices and no prohibition notices had been served.  It therefore appears that the HSE will adopt a measured enforcement approach, at least initially.

However, attitudes can change over time and with external pressure.  For example, there were recently demands for Tönnies’ factory in Germany, Europe’s largest meat-processing plant, to be held to account after 1,500 of its workers contracted COVID-19 in a mass outbreak.  Will clusters of COVID-19 cases, which to some degree will be inevitable even at responsible employers’ premises (PHE reported that workplace outbreaks almost doubled in the week ending 28^th June 2020 from the previous week), be viewed as evidence of the COVID-19 risk not being controlled?  The public and businesses in a region which, for example, needs to return to stringent lockdown measures because of an increase in cases caused or contributed to by a particular employer, are likely to be vociferous in demanding action.  They could have their liberty curtailed and suffer serious financial losses as a result.

The recommendation to the HSE set out in WPC’s report, ‘DWP’s response to the coronavirus outbreak’, published on 22^nd June 2020, is indicative of the type of external pressure to take action which the HSE will face:

“HSE has received thousands of concerns from people concerned about safety at work during the pandemic. It has required just one business to close [the HSE’s 30^th June letter corrected this information as no prohibition notices have in fact yet been served].  It has not, however, inspected a single care home since 10 March 2020. Without records of the number of businesses that have closed voluntarily after an intervention by HSE, it is impossible to get a clear picture of the impact its work has had.  We recommend that HSE consider how it could improve the detail and transparency of its reporting, to send a clear message to the public that raising concerns with HSE does result in action against employers where necessary”.

In addition, consistency between the regulatory authorities is a concern.  The HSE is liaising with PHE and would appear to have more readily available expert input; local authorities have responsibilities for enforcing the legislation in lower-risk workplaces and they are less well-equipped and resourced (the HSE just received a £14m funding injection in the current financial year).  There is evidently some liaison and sharing of resources between the HSE and local authorities, but it remains to be seen to what extent this will address consistency.

There will be nuanced decisions to be made which take into account the different risk profiles of a wide range of industries.  As recent events have brought into sharp focus, views on the reasonableness of particular actions and whether they comply with Government COVID-19 guidance can vary significantly.

It may be said that the courts will ensure that correct decisions are made.  However, challenging an enforcement notice or defending a criminal prosecution is a time consuming and costly process and businesses particularly need to avoid regulatory burdens at this acutely challenging time.

Bearing in mind all the present circumstances, an influx of COVID-19 related enforcement action, particularly for companies acting reasonably and attempting to follow the available guidance, is considered unlikely.  The likelihood may rise over time, including as lockdown fatigue increases.  Whilst companies and individuals are exposed to the risk of prosecution, it is currently anticipated that prosecutions will generally be reserved for the most egregious cases, for example where guidance and warnings have been deliberately ignored and large numbers of people affected.