Covid-19 is not a ‘serious and imminent danger’. Risk assessments might be.

July 11, 2020July 11, 2020 Stephen 6406 Views

There are two separate species of claim which employers and HR professional may feel particularly threatened by:

Covid-19 personal injury claims
Statutory employment claims e.g. health and safety claims, including automatically unfair dismissal, under Employment Rights Act 1996 sections 44 and 100.

They not be as scary as is being suggested.

Covid-19 personal injury claims

Covid-19 personal injury claims are of the sort: “I contracted Covid-19 because of your failure to enforce social distancing and you are responsible for, and must pay me compensation for, my illness/death from Covid-19.”

In 99% of cases this will be an extremely difficult claim to succeed with.

There are various legal hurdles but one is most obvious: it will be next to impossible for a claimant to prove that they contracted the virus from the workplace as opposed to from their family or friends or out shopping. Covid-19 is not like industrial injuries, such as asbestosis or vibration white finger, where the disease requires unusual or prolonged exposure to materials or practices only found in the workplace.

If worried about claims from employees’ family, that first hurdle must be jumped twice: the family member must prove that they got the virus from the employee and then prove that the employee got the virus from the workplace.

These hurdles multiply many times over if the theory of transmission by asymptomatic carriers is correct.

Statutory employment claims

Statutory employment claims are of the sort: “I’m not coming into work while it isn’t safe but if you don’t pay me or if you dismiss me, then I’ll sue for unfair dismissal’.

When the lawyers get involved, the legal questions include whether the employee who stayed away “reasonably believed” that they or others would face circumstances of “serious and imminent danger” from Covid-19 in the workplace. If so, the Employment Rights Act 1996 may protect them from dismissal or any other detriment, such as losing pay. This particular protection under applies to all employees, regardless of length of service, and offers the attraction of potentially unlimited compensation.

Given government messaging and mainstream news, many employee may very reasonably have such a belief and will leave work expecting to be protected from dismissal or from having no pay if they walk out. Sooner or later, they will rely on the employer’s Covid-19 risk assessment, alleging it is deficient or that it has not been followed and enforced.

This is a battle where employers and businesses may find a chink in the government’s armour.

Assessing danger, not transmission

It is essential to appreciate that the health and safety assessment required is not of the risk of transmission of the Covid-19 virus. The assessment required is of the risk of significant danger. Those are fundamentally different issues.

For illustration, risk of transmission of a common cold or flu virus may be high, but the risk of significant danger to the staff is extremely small.

The HSE risk assessment is fundamentally flawed

The Covid-19 risk assessment promoted by the government and Health and Safety Executive (HSE) is, fundamentally, the wrong assessment. Taking the following extract, the HSE template assessment fails to answer its own key question: “Who might be harmed and how?”

The first column in the table identifies the alleged ‘hazard’. The second column answers ‘who’ but not ‘how’. There is an assumption of harm from the hazard, but the assessment fails to address what, how serious, or how likely that harm is.

The flaw in the assessment is also apparent from the hazard identified of ‘mental health and wellbeing affected through isolation’ as shown below:

Again, the assessment fails to address what, how serious, or how likely that harm is. The controls offered in the third column, however, suggest that no question is asked of whether isolation is justified in the first place.

There is, accordingly, no consideration of whether the risk of dangers from isolation may be rather greater than risk of danger from contracting or spreading covid-19. No attention is paid to balance, or proportionality, when assessing dangers of the hazard alleged against the further dangers arising from control measures suggested.

A balanced risk assessment

In a “suitable and sufficient” risk assessment, using the language of The Management of Health and Safety at Work Regulations 1999, an employer is entitled to have regard to the harm that may be caused by the measures it takes. These may include, for example, the physical and mental well-being of its staff arising from isolation, from redundancy or reduced pay, from job insecurity, from working in an environment of induced fear, and for the effects of all of these things on the employees’ families.

The assessment may also have regard include likely consequences in the long term and the interests of the company’s employees. In fact, directors of any company have a general duty under the Companies Act 2006, section 172, to have regard to these, among other matters.

This is not to say Covid-19 does not present some risk of danger to consider or address. As for the extent of that risk, however, an employer should make reasonable enquiries as to current knowledge of risks and dangers.

In practice, employers often rely on health and safety consultants to do this this for them. They and the employers may be quite reasonably entitled, for example, to consider it better to rely on analysis of available data from sources such as the Office for National Statistics or the NHS i.e. data-based evidence, rather than predictions from models that have not been realised.

Note should of course be taken of any published guidance from the government or HSE, and the headline death and Covid-19 case statistics promoted in daily news. Indeed, an employer needs to consider carefully how it brings its workforce with it and to accept that the workplace is not dangerous.

Serious and imminent danger

It is not necessary to accept that Covid-19 presents a ‘serious and imminent danger’.

This phrase derives from The Management of Health and Safety at Work Regulations 1999, regulation 8, lifted directly from its parent European legislation. The regulation is specific. It regulation requires employers to establish appropriate procedures that require its employees, save in exceptional cases, to stop work and not to resume it where there is a serious and imminent danger, and immediately to proceed to a place of safety, if that danger is unavoidable.

A case is no longer ‘exceptional’ if it carries on for several months. If Covid-19 uninhibited presents a serious and imminent danger, is it really argued that standing at a distance of one or two metres, or wearing a mask, is effective to avoid that danger? Perhaps the risk is reduced, but it is difficult to accept the danger has been avoided.

The logic is that either every business is required to shut down their premises completely and send their workers to a place of safety (wherever that may be) or Covid-19 does not by itself constitute a ‘serious and imminent danger’. We can’t have it both ways.

Defending statutory employment claims

It should be a given that an employer wishes to keep their workforce safe.

However, employers do not have to prove their assessment was correct and the employee was wrong. They need only show they made a reasonable assessment and that they communicated this to the employee.

So, take an employee complaining to her employer “If you won’t insist on masks being worn and everyone maintaining social distancing in the workplace, then I’m walking out now.”

With a suitable and sufficient risk assessment to hand, the employer can be ready to respond with a script along these lines:

Here is our risk assessment
Here is our evidence
Our assessment is that the workplace is safe
Let us explain that further to help you understand

And continuing if the employee is not persuaded:

If you choose to believe that there is a serious and imminent danger despite our assessment, that is your choice.
If you choose not to come into work, you will not be paid.
If you choose to remain away from work, it may become necessary to consider terminating your employment.

Where the employee has an underlying health condition, the issue is likely to be pursued as a disability discrimination complaint as well. There will also be cases where an employee alleges they are victimised because they’ve spoken up about health and safety measures and whistleblowing complaints are pursued.

Such complaints also can be dealt with far more straight forwardly if the risk assessment has been considered carefully and the business is prepared (a) to enforce the control measures it has put in place and to absorb any disruption that results, and (b) to defend any absence of control measures if complaint is made about that.

In conclusion

On 4^th July, for England the government revoked the lockdown restrictions in almost their entirety and replaced them with a “No. 2” set by the same title, The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020. Those regulations leave the guidance largely unsupported by any legal force. Government expectation, and the reality, seems to be that risk assessments will be a sufficiently effective tool to ensure its guidance is implemented.

Whether or not, or for how long, employers consider the disruption to busines of adopting social distancing measures suggested by non-compulsory guidance is necessary, will of course also take into account perceptions of their staff and their customers. The central point, perhaps, is that this is their choice.

(In Wales, the situation is more complicated because social distancing requirements and need to ‘have regard to’ Welsh Government guidance, has been given the force of law. Nevertheless, most of the above is relevant to Wales also.)

As always, if you need advice in relation to any issues raised in this article, please get in touch.

Warning and legal disclaimer: Law and circumstances can change very quickly. The authors do not condone or encourage breaching the law and any opinions expressed above do not constitute legal advice or gives rise to a solicitor/client relationship.

Sharing is caring