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Effective health and safety management has always involved a process of identifying risks and putting in place measures or mitigations to protect the safety of workers. COVID-19 is no different in this respect; all businesses, small or large, have to do what they reasonably can to control the spread of the virus. The challenge is that not only is it invisible, but the exact mechanisms behind how it spreads also are not entirely clear. This raises the key question for businesses who are looking to re-establish their operations; are we doing enough to protect workers, and are we at risk of inadvertently breaching health and safety law?
All businesses are obliged to conform with the Health and Safety at Work etc. Act 1974 (HSWA) which states, ‘it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees’. In practical terms, this means that equipment, systems, information, training, supervision, and instruction must be put in place so far as is reasonably practicable, to protect the health and safety at work of employees. It is, however, highly unlikely that HASW will be readily enforced where COVID-19 has spread within a workplace, especially given that PPE, handwashing, screening, and social distancing measures are no guarantee that the virus will not spread.
Businesses also have a legal obligation to report significant health and safety events to the Health and Safety Executive (HSE). HSE has issued new COVID-19 specific guidance in relation to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), stating that reports must only be made when:
The key words above are ‘reasonable evidence’; how can an employer possibly know if COVID-19 was caused by workplace exposure, and not in another setting? It may only be realistically possible to infer workplace transmission where an employee is in known contact with the virus – e.g. front-line workers treating patients with COVID-19. Therefore, in the absence of a causal link for a diagnosis of COVID-19, as will be the case in most workplaces outside of healthcare, most businesses should not find themselves in breach of their reporting obligations to HSE.
There is much that can be done to protect workers from the COVID-19 virus; extensive guidance has been published by the HSE, which recommends:
While COVID-19 poses a considerable health and safety challenge, every effort should be made to mitigate the impact on those workers who are most vulnerable. It is now clearly established that some individuals are proportionally more at risk from COVID-19, including, according to the NHS, those who:
It might be that those with the highest risk within your business will have to work at home, or where this is not possible due to the nature of the role, they should be offered jobs for which you can better prevent their risk of exposure to COVID-19.
It is highly advisable to review the official government guidance on a daily basis to determine any new rules or changes in law which may relate to your business. And as a matter of standard practice, ensure that robust records (including clear contemporaneous notes) are kept in relation to your regular health and safety risk assessments. While these may never be needed, they will prove essential if your business is accused of a health and safety breach in the future.
All businesses have a duty to protect the health and safety of their workers. While it is unlikely that enforcement action by the HSE will be taken due to the spread of the virus in the workplace, every effort should be taken to protect staff, customers, and anyone else in contact with your business. Doing so will engender trust within your organisation, meaning that workers will continue to come to work in the knowledge that you are doing all you can to protect your team. Ultimately this is an unprecedented situation for modern day workplaces and businesses will be judged on how they step up to the health and safety mark.
Tanveer Qureshi specialises in health and safety, food hygiene, and environmental law. If you require legal representation, please contact Tanveer directly at firstname.lastname@example.org or via his chambers, 4-5 Gray’s Inn Square. For more about Tanveer or to subscribe to his newsletters, please go to www.tqlegal.co.uk.