One of the impacts of the COVID-19 pandemic has been a paradigm shift in the way we work, with many more of us working from home and avoiding unnecessary contacts. This has inevitably led to some questioning what the impact of these changes will have on the duties of employers to ensure health and safety of their employees who cannot work from home.

Under the common law, employers owe their employees a duty of care to provide:

(i) A safe place of work;

(ii) A system of work;

(iii) Safe equipment; and

(iv) Safe staff.

The Health & Safety at Work etc Act 1974 (“the Act”), with the accompanying regulations, imposes specific duties upon employers. Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Act to say that a breach of a duty imposed by existing statutory provisions will no longer provide grounds for a civil action and therefore, in order for a claim to succeed, it must do so under the common law negligence principles. That said, the health and safety regulations inevitably continue to shape the basis of such claims. This is old news.

This article is concerned with the implications of claims arising as a result of exposure to COVID-19 in the workplace, whether as a result of Personal Protective Equipment (PPE) not being available, thereby leaving employees compelled to operate without it, or otherwise. This will pose particularly complex considerations when examining such a situation in the context of healthcare settings where, alongside their duty of care to their employees, the employer has further such duties of care towards its patients.

There has been extensive coverage in the media and from healthcare organisations, including the British Medical Association, the medical Royal Colleges, and the Royal College of Nursing concerning the inadequate supplies of PPE to the NHS. There can be no doubt that the logistical feat of ensuring appropriate supplies has been very challenging. As with all major crises, there is likely to be a subsequent inquiry into the preparedness and effectiveness of the Government’s response. This is a highly emotive issue, and with healthcare workers contracting and, in some cases, sadly dying from COVID-19, questions will inevitably be asked as to whether such events could and should have been avoided; simply, were these “injuries” resultant from negligence on behalf of their employers.

In terms of the statutory backdrop, as defined by Regulation 2(1) of The Control of Substances Hazardous to Health Regulations 2002 (COSHH), COVID-19 would be considered to be a biological agent, being “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”.

The HSE has issued guidance which clarifies that COSHH does not apply to cases where employees are exposed to a disease which is present in the general population. The Approved Code of Practice (ACOP) sets out at paragraph 18 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.”

That said, within the context of the healthcare sector, where the risk of COVID-19 exposure is work related, it remains arguable that Regulation 2(2) may bite, subject to the applicability of the COSHH regulations to state bodies post-Enterprise and Regulatory Reform Act 2013. As we say above, the COSHH regulations may be persuasive in common law negligence claims in any event.

Regulation 6 of COSHH sets out an employer’s obligation to conduct “a suitable and sufficient assessment of the risk created” by work involving substances hazardous to health. A risk assessment shall include, amongst others:

(i) The hazardous properties of the substance;

(ii) The level, type, and duration of exposure;

(iii) The circumstances of the work, including the amount of the substance involved;

(iv) Any relevant occupational exposure standard, maximum exposure limit or similar occupational exposure limit;

(v) The effect of preventive and control measures which have been or will be taken in accordance with regulation 7;

(vi) The results of relevant health surveillance; and

(vii) The results of monitoring of exposure in accordance with regulation 10.

Regulation 7 makes provisions that employers shall ensure that the exposure of employees to substances hazardous to health is either prevented or, where that is not reasonably practicable, adequately controlled. In the case of the latter, this means applying protection measures appropriate to the activity. These include:

(i) The design and use of appropriate work processes, systems, and engineering controls and the provision and use of suitable work equipment and materials;

(ii) The control of exposure at source, including adequate ventilation systems and appropriate organisational measures; and

(iii) Where adequate control of exposure cannot be achieved by other means, the provision of suitable personal protective equipment.

Regulation 10 of COSHH places upon the employer a duty to “ensure that the exposure of employees to substances hazardous to health is monitored in accordance with a suitable procedure”.

Regulation 12 of COSHH addresses the information, instruction, and training an employer must provide to their employees who may be exposed to substances hazardous to health. Such information should include:

(i) Details of the substance hazardous to health to which the employee is liable to be exposed. This would include information regarding the risk posed to the individual’s health;

(ii) The significant findings of the risk assessment; and

(iii) The appropriate precautions and actions to be taken by the employee in order to safeguard him/herself and others in the workplace.

The arrangements to deal with accidents, incidents, and emergencies are set out at Regulation 13. It states that, in order to protect the health of employees, employers must ensure that:

(i) Procedures, including the provision of first aid facilities and relevant safety drills, have been prepared which can be put into effect when an event occurs;

(ii) Information on emergency arrangements should include:

a. Details of relevant work hazards and hazard identification arrangements; and

b. Specific hazards likely to arise at the time of an accident, incident, or emergency.

(iii) Suitable warning and other communication systems are established to enable an appropriate response, including remedial actions and rescue operations, to be made immediately when such an event occurs.

Of course, The Personal Protective Equipment at Work Regulations 1992 also create a number of duties upon employers.

COVID-19 is only reportable under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) if an occupational cause can be confirmed by a qualified medical practitioner. Given the difficulty in establishing causation, reporting is likely to be the exception rather than the rule, albeit this might be clearer where the employee is regularly exposed to COVID-19 in a health or social care setting. There is also likely to be a reluctance on the part of the Health and Safety Executive to pursue prosecutions for failure to comply with the regulations, in light of the recognised global shortage of PPE.

This issue is already causing debate and controversy in the coronial world. The Chief Coroner has recently released guidance addressing these issues.

So, what about common law negligence? Where will the line be drawn as to what was and was not a breach of duty in terms of the provision of PPE when supplies are limited and the wave of poorly patients is seemingly never ending? How, if at all, will judges be influenced by the COSHH and PPE regulations set out above?

As and when life returns to a ‘new normal’ following the easing of social distancing restrictions, it is entirely foreseeable that a wave of civil litigation will arise. Whilst likely to comprise predominantly health and social care sector staff, other potential claimants could include prison staff, patients, service users, and other key workers such as transport operatives. Such actions will, of course, face significant hurdles with respect to causation and loss. They are also likely to be strongly contested given the unprecedented circumstances in which the claim(s) arose.

Richard Grimshaw and Dr Neil Shastri-Hurst are members of the Personal Injury and Clinical Negligence Groups and represent both claimants and defendants in a range of personal injury and clinical negligence cases.