Health & safety compliance - the overall impact of Covid-19 on UK businesses

Most of us in the UK have been impacted in some way by the new coronavirus (or Covid-19, as the resulting disease is known). With the virus continuing to spread extensively, it has and will continue to pose a real challenge to businesses across a variety of sectors unless the risks are properly managed. Employers and business owners are wondering what impact Covid-19 will have on their day-to-day health and safety responsibilities and what they should be doing to address the increasing risks to employees and other relevant persons as the pandemic develops.

Existing health and safety obligations

Despite the unprecedented nature of the virus and the risks that are publicly discussed each day on the news channels and social media platforms, the obligations owed by employers to employees (and by duty holders to all relevant persons) following the Covid-19 outbreak are not new obligations. However, companies are right to be concerned about their exposure to a potential criminal investigation if one of their employees were to contract the virus. Key health and safety legal duties that are relevant to the risks posed by Covid-19 are placed on both employers and employees.

Employers / owners / occupiers: Under the Health and Safety at Work, etc. Act 1974 (HSWA), employers have the duty to safeguard, so far as is reasonably practicable, the health and safety of their employees at work, and persons other than their employees (including visitors to their premises and members of the public) who may be affected by the employer's undertaking. Failure to do so may give rise to criminal enforcement action against the employer and/or a potential claim for compensation under civil law. However it will be extremely difficult to establish that a person has definitively contracted the virus in the workplace.

Senior managers and directors should be aware that they could also face potential personal criminal liability if the organisation commits a health and safety offence due to that senior individual's act or omission, particularly if they have not been as proactive as someone in their position ought reasonably to have been. This could mean significantly high fines for companies and possible imprisonment for individuals in the worst cases.

Risk assessments: In order to comply with general safety duties, employers should be reviewing the risk assessments relating to their premises and how people work within the business. The Management of Health and Safety at Work Regulations 1999 require all employers to make a suitable and sufficient assessment of the risks to the health and safety of their employees at work and of persons other than their employees arising out of, or in connection with, their work operations. This review should be carried out if the current assessment is suspected to be no longer valid or if there has been a significant change in circumstances. The present risks posed by Covid-19 certainly warrant such a review. Appropriate arrangements must be put in place for the planning, organisation, control, monitoring and review of those measures identified in the risk assessment as being necessary. Of course, employers are not expected to eliminate all risks but they need to do everything reasonably practicable to protect people from the risks posed in the workplace by the virus. This will involve weighing risk against the trouble, time and money needed to control it – a cost / benefit analysis.

Businesses should now consider updating their risk assessments and company policies to reflect current Government guidance, as demonstrating that guidance has been followed will usually provide evidence that the employer has complied with their health and safety legal duties.

Employees: It isn't just employers that have health and safety obligations to meet in this Covid-19 crisis. The HSWA requires all employees to take reasonable care for the health and safety of themselves and other persons who may be affected by their acts or omissions at work. Employees must also co-operate with their employers so far as is necessary to enable them to comply with their health and safety duties. This may include taking reasonable precautions to maintain good hygiene standards such as washing their hands frequently with soap and water (or hand sanitiser), maintaining social distancing and complying with company policies and practices.

Employees and visitors can help by declaring if they have come into contact with any affected persons or traveled to and from any high-risk countries in recent weeks. Employees should also inform their employers about any pre-existing conditions or any issue that could affect the reviewed risk assessment – as they would usually be expected to do.

We are certainly in unprecedented territory here. With employees being asked to work from home (if possible), being furloughed or in some cases, being asked to come to work and exercise reasonable care to adhere to the social distancing rules and use of appropriate PPE (particularly in the construction sector), employers and employees are doing what they can to stay safe. But rather than worrying about the fear of being investigated and/or prosecuted for potential health and safety failures, duty holders should simply continue to do what they have always done to seek compliance – review relevant risks, apply control measures to prevent or mitigate that risk and monitor the ever changing Government guidance.

Reporting incidents and Covid-19

Duty holders are required to report certain incidents to the Health and Safety Executive (HSE) under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) – see the HSE's website for details.

The risks posed by Covid-19 have prompted the HSE to specify that the following incidents should be reported:

• an unintended incident at work which has led to someone's possible or actual exposure to coronavirus (e.g. lab worker accidentally smashing a glass vial containing coronavirus, leading to people being exposed). This must be reported as a dangerous occurrence.
• a worker has been diagnosed as having Covid-19 and there is reasonable evidence that it was caused by exposure at work (e.g. health care professional who is diagnosed with it after treating infected patients). This must be reported as a case of disease.
• a worker dies as a result of occupational exposure to coronavirus – this is also to be dealt with as an exposure to a biological agent.

What has also been helpful from the HSE is the confirmation that they do not expect businesses to close, but they expect all reasonable steps to be taken to enable employees to work from home or to follow Public Health guidelines on social distancing and hygiene whilst at work. If employers do not heed the advice from the HSE, they are at risk of facing some form of enforcement action.

Whilst the HSE wishes to continue its regulatory oversight of how duty holders are meeting their health and safety responsibilities in light of the Covid-19 risks, there will no doubt be fewer site visits and targeted inspection activity of high-risk industries, such as construction or manufacturing. However, this should not be seen as a time to become complacent. The HSE will still investigate work-related deaths and the most serious injuries and dangerous occurrences across all sectors. However, with more and more businesses switching to a predominantly remote working approach, the HSE are planning to take a "flexible and proportionate account of the risks and challenges arising from the pandemic" as there will be fewer relevant persons in the archetypal workplace and perhaps even less resource within the HSE to actively investigate those workplaces.

A number of ongoing prosecutions are simply being adjourned and those under investigation are not being charged during the Covid-19 period. Even for those corporate manslaughter or gross negligence manslaughter cases that are investigated and prosecuted by the police and Crown Prosecution Service, there is a national protocol in place where no new trials are being listed and current trials have had to be stopped because of problems over the attendance of victims, witnesses, defendants, advocates and jurors. In any event, general social distancing guidelines make it difficult for the courts and police stations to operate as they had been ahead of the crisis, although telephone and video interviews under caution and court hearings are being utilised with relative success.

Occupational well-being and working from home

Employers must, by now, have asked large numbers of employees to work from home and/or to self-isolate in certain circumstances. Given the overarching duty held by employers to secure the health and safety of employees during a time when public health is at serious risk, it is imperative that employers take all reasonably practicable steps to protect their workers and others that are involved in their daily operations.

Working from home isn't a new concept – in fact, many of us routinely work from home and find it a productive way of completing work tasks without the need to commute to an office every day. But for those who have to work from home for a prolonged period for the first time, this experience as well as the stress of dealing with a life-threatening virus in our communities may cause a significant level of stress. The health and safety responsibilities owed to those that work from home ("homeworkers") is the same as for any other workers – those overarching responsibilities under HSWA still apply.

Compliance: The HSE is clear that compliance with occupational health and safety legal requirements remains with duty holders and the HSE will continue to monitor compliance based on its available regulatory capacity. There is unlikely to be an increased risk to those who use display screen equipment at home on a temporary basis and therefore no need for an updated home workstation assessment, but this may change if employees will be working from home on a long-term basis – a term which remains open to interpretation.

When an employer is assessing the occupational health and safety risks posed by working at home, they must consider:

• how will you keep in touch with employees who are working at home?
• what work activity will they be doing (and for how long)?
• can it be done safely?
• do you need to put control measures in place to protect them?

Additional risks may arise from employees working alone without any direct supervision, and it is worth considering what impact reduced contact, if any, with their employer could have on their overall mental health and well-being.

The HSE published new guidance for investigating cases of work-related stress late last year and it is only a matter of time before there is a potential prosecution for work-related stress, despite it being difficult to establish a causal link. With health and safety prosecutions in the UK being focused on exposure to risk as opposed to actual harm and the new HSE stress guidance confirming that it will investigate if it receives evidence that a "number of staff are experiencing work-related stress or stress-related ill health (i.e. that it is not an individual case)", prosecutions based on stress from work conditions or due to lack of preventative measures during temporary home working are likely to be more of a reality in 2020.