Legal view: what if an employee catches Covid at work?

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What are the risks for an employer who opens the office with precautionary measures put in place, then an employee contracts the virus and blames them? Mary Goldsbrough discusses the options

The law says employees cannot take direct legal action against their employers for damages arising from alleged breaches of health and safety legislation. This means that they cannot directly sue their employers for allegedly failing to protect them from catching Coronavirus.

However, employees have a legal obligation to inform their employers, or health and safety representatives, of any work situation that could reasonably be considered to represent a serious and immediate risk to health and safety. Employers would be in the wrong to ignore such concerns, and if they dismiss the employee(s) who raised those concerns, would expose themselves to claims of unfair dismissal.

If the employees think that their concerns will not properly be dealt with internally by their employer (or if their concerns were indeed ignored), they can report the issues externally to the Health and Safety Executive (HSE) – the UK government agency responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare.

HSE can then take enforcement action against employers, up to and including prosecution.  Criminal sanctions can take the form of an unlimited fine and/or a period of up to 2 years’ imprisonment depending on the offence.

employers should make sure they comply with the fast-changing employment and health and safety legislation

To make a successful claim, the employees will need to show that they had reasonable belief that they were in serious and imminent danger. They will also need to persuade the court that they contracted Covid-19 at work and demonstrate that their employer was aware of the danger and had the means to protect staff more but chose not to.

Employees will struggle to do so if their employer can demonstrate that it took all reasonable steps to minimise the risk of employees being exposed to Covid-19 whilst at work.

Whether the employees returned reluctantly or not doesn’t make much of a difference – the key point will be whether the employer did a risk assessment and took into account individual circumstances.

Options to mitigate risk

To reduce the risk of such a claim being successfully brought against them, employers should make sure they comply with the fast-changing employment and health and safety legislation.

Employers have a legal duty to take reasonable care for their employees’ safety, so before asking employees to return, they should carry out a Covid-19 risk assessment in line with HSE guidance, sharing the results internally and – if they employ more than 50 employees – on their website.

Ultimately, the best way for employers to avoid this sort of litigious scenario is to develop trust with their staff

Those based in England should also consider the Government’s guidance for returning to work safely. There is (confusingly) different and separate guidance in place for employers in Wales, Scotland and Northern Ireland to consider.

Meeting these requirements will help ensure a safe return to the workplace, demonstrate, in the event of a complaint, that the employee’s view (that they were in serious and imminent danger) was not reasonable and reduce the risk of a successful prosecution by the HSE.

Ultimately, the best way for employers to avoid this sort of litigious scenario is to develop trust with their staff. With the pandemic, the perception of health and safety has evolved from a “box ticking” exercise, to a priority for most employees returning to work after being told by the Government they were safer at home.

In this context, promoting a collaborative, open and tolerant culture at work is essential to create a safe space for all, and an environment where employees can raise concerns with confidence that these will be listened to. Employers can do this by:

  • Consulting with employees/trade unions about the risk assessment
  • Providing all employees with health and safety training – focussed on Covid-19
  • Introducing and clearly communicating workplace protocols to minimise Covid-19 related risks
  • Encouraging employees to raise concerns at an early stage to reduce the risk of these being escalated
  • Ensuring that consideration is given to individual circumstances when deciding who should return to the workplace e.g. disabilities and caring responsibilities
  • Dealing with any concerns raised transparently and promptly