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Covid-19: Protecting your employees

28th May 2020

Covid-19: Protecting your employees

The essence of an employer’s common law duty to its employees is to take reasonable steps to provide a safe place and safe systems of work to protect their employees, as far as is reasonably practicable to do so, from any reasonably foreseeable risk of harm.

In considering these duties owed by an employer, the provision of personal protective equipment (PPE) will of course be relevant where an employee returns to the workplace because it is not feasible or practicable for them to work from home.

In determining what actions are appropriate to take the law expects the employer to keep abreast of public guidance at all times, when considering the steps that they should take in order to protect their employees, such as the Government’s sector specific guidance which was issued on 11 May 2020.  This covered amongst other things: notices about self-isolation, considering special measures for vulnerable people, controlling aerosol risk, workplace staff densities, access points, circulating around premises, workstations, meetings, common areas, visitors, travel, deliveries, maintenance, catering, communicating, steps before opening, control of contact, equipment, sanitation and face masks.

Alongside the Government’s sector guidance, it is worth noting that regulation 4 of the Personal Protective Equipment at Work Regulations 1992 states that provision of PPE should only be adopted as a last resort, if all other means of avoiding risks cannot be implemented. Other measures to protect an employee from the risk posed by COVID-19 would include say working from home, disinfecting equipment, enforcing social distancing, and providing convenient hand-washing facilities or in extreme cases, ceasing business. When those risks cannot be mitigated and probably in addition, it is entirely appropriate and proportionate to provide PPE.  The regulations provide that the equipment must be suitable and that suitability is assessed by reference to the following characteristics:

  • it is appropriate for the risks involved and the conditions at the place where the exposure to risk may occur
  • it takes into account ergonomic requirements and the state of health of the person who may be wearing it
  • it is capable of fitting the wearer correctly
  • it is effective, so far as it is practicable, to prevent or adequately control the risks involved without increasing the overall risk and
  • it complies with any relevant standards.

In determining whether the provision PPE is appropriate, the Courts are likely to measure its appropriateness by looking at any guidance issued by the WHO, Health and Safety Executive, Public Health England and, of course, the Government. A particular difficulty that arises though is that the guidance has altered in time, as we have understood more about the COVID-19 virus.

To satisfy their obligations to provide appropriate PPE, an employer must ensure that the PPE fits the wearer correctly and employees may be required to carry out a fit test. It is particularly important that any PPE meets the relevant safety standards which will, of course, differ depending on the nature of an employee’s role and the environment in which they work.

There is also a duty on an employer to conduct a risk assessment in connection with its operations and to take suitable precautions against identified risks, to avoid injury to its employees. The new risks posed by COVID-19 make it highly likely that any existing risk assessment will be inadequate and a new one should be prepared and reviewed periodically. A belt-and-braces approach would be for specific risk assessments to be prepared for any employees whom are particularly vulnerable.

When PPE is provided, the employer is required to ensure that PPE is maintained (including replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair.  Where PPE is reused, this duty is likely to be highly relevant; if the PPE is designed for single use, it will clearly not be appropriate for it to be reused.

The employer is also required to provide information, instruction and training as is adequate and appropriate to an employee using PPE. Training will therefore be especially important for employees who have been asked to use PPE when they have never used it before.

The Employers Liability Defective Equipment Act 1969 provides additional responsibilities on an employer. This is because where an employee suffers personal injury in the course of their employment as a consequence of defective equipment provided by the employer, the Act provides that the injury shall be deemed to be attributable to the negligence of the employer, even if the defect was attributable to the fault of a third-party supplier.

Any employee who contracts COVID-19 will face a difficult task of establishing that it was their employer’s breach of duty (such as, failing to provide adequate PPE or to take other measures) which caused them to contract COVID-19, given the prevalence of COVID-19 in the community and its transmissibility. Employees, however, do only need to prove causation on the balance of probabilities, in other words that it was more likely than not, that any breach caused them to contract the infection.

In determining causation, consideration would be given to the nature of the employee’s role and the extent to which the employee was likely to be exposed to COVID-19 in the workplace, as opposed to in the community. Much will of course depend on the nature of the employee’s duties and the extent to which they were exposed to a greater risk. For example, employees who are exposed to the general population are more likely to be exposed to COVID-19, than an employee who has limited interaction with the public.

When considering the issue of causation, if an employer carries out regular testing of their workforce in order to determine whether they are showing symptoms, it will potentially be easier to determine the issue of causation as the testing will make it possible to determine the timing of an individual’s infection.

It may also be possible for an employee to use existing law and argue that their employer’s negligence materially contributed to the contraction of COVID-19 and therefore materially increased the risk of the employee contracting the disease.

An employer wishing to protect their staff and also to defend against any future claims in respect of an alleged failure to comply with their legal duties, is encouraged to gather and retain as much evidence as possible, to show that all reasonable steps were taken to follow Government guidance and also, in particular, the duties imposed by Personal Protective Equipment at Work Regulations 1992.  This will include risk assessments and evidencing what attempts were made to obtain PPE, in addition to keeping records of training and support provided to employees. It would also be sensible to enforce the use of personal protective equipment in the workplace and issue written warnings if the PPE is not worn.

If you would like to discuss any of the challenges outlined in this article in more detail please contact Andy Shaw on 01384 327200 or email andy.shaw@higgsandsons.co.uk

If you have any other general queries or concerns that you feel we can assist with, please email supportingyou@higgsandsons.co.uk and somebody will get back to you as a matter of urgency.

 

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