It started with thorough handwashing, progressed to closing schools and pubs and then finally as of Monday 23rd March 2020 the UK seemed to grind to a halt after Prime Minister Boris Johnson’s address to the Nation. Amongst other things, that historic address prohibited the population from going to work except where that work is “absolutely necessary and cannot be done from home”.
With an almost frozen economy, total suspension of social life, sporting and cultural activity, life as we know it has been put on hold. The proportion of the UK population working in the home must be at it its highest level since before the Industrial Revolution.
Hopefully as many people as possible will stay safe and healthy but what of the people who are required to continue going out to work? By the law of averages some of these people will catch Covid19 Coronavirus and some will ask themselves, “Am I entitled to compensation for catching Coronavirus at work?” It seems is only a matter of time before lawyers are consulted for advice on the answer.
The Duty Owed by Employers to Employees
UK workers are well protected by Health & Safety law.
In general terms, the common law obliges employers to take reasonable measures to provide a safe place of work, a safe system of work and safe equipment. The common law duties are supplemented by specific statutory duties such as the Workplace (Health Safety and Welfare) Regulations 1992, the Personal Protective Equipment at Work Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998
The recurring theme in the common law and statutory duties is that the Employer has to do what is reasonable.
What is “Reasonable”?
The civil law accepts that risks to employees cannot be totally eliminated.
The question of what is reasonable to expect from an employer has to be answered by balancing three key concepts:
- How likely is it that a particular risk will materialise?
- If that risk does materialise, what will be the severity of the damage?
- What is the cost of eliminating or reducing that risk to the lowest level reasonably practicable?
Applying that balance to the risk of employees contracting Coronavirus (Covid 19) at work
Clearly, the virus is highly contagious so in a pandemic situation the starting point is that the risk of catching it from colleagues at work is very high.
We also know that it can be fatal so the severity factor is also very high.
Taking those first two factors together, the answer to the third question is that Employers must therefore prepare themselves to pay a high economic cost to keep their workers safe. That much is self-evident from the extraordinarily costly steps which Governments are taking all over the World.
What should employers do to reduce the risk of employees catching Coronavirus?
The measures required of Employers depend on the necessity of the organisation’s work.
Key workers are needed to do the work which is “absolutely necessary and cannot be done from home”. Whether work is “absolutely necessary” has to be a matter of common sense rather than self-identification so, for example, the retail sale of discount sportswear would not be absolutely necessary (but would place staff at terrible unnecessary risk).
For the Employers of genuine key workers it is a matter of preparing a thorough risk assessment to identify all practicable steps which will reduce risk as far as reasonably practicable. The risk assessment will point to proportionate precautions and adjustments such as adaptations to the workplace (we can see evidence of this being done as supermarkets start to protect check out staff by erecting screens) or it might require the provision of personal protective equipment “PPE” such as gloves and masks (as with NHS staff).
Employers of non-key workers are duty bound to devise a reasonably safe system of work if their trading operations are to continue. Again a risk assessment is necessary which will point to the measures which are appropriate. That might be to PPE or a change in the workplace but if the risk of worker contracting the virus remains high it might necessitate facilitating home working or even suspending the work at that site.
What if my employees are not key worker but cannot do their work from home?
Employers must ask themselves whether the work itself is impossible to do from home (e.g. manufacturing or construction). If it is, the Governments “furlough” scheme might be the solution.
If the business is simply not equipped to allow work to be done from home, difficult decisions have to be made. If work can be done at home and it is crucial to the business that the work carries on, it is difficult to see any justification for the employer not to equip workers with the necessary technology. Taking a solicitors office as an example, if firm A has sent its staff home with laptops, it is difficult to see how firm B can justify keeping their office open simply because they do not have laptops. An employee of firm B who contracted Coronavirus (Covid19) at work might be able bring a civil claim for compensation against the employer.
Looking at what similar businesses are doing is a good way of assessing what is reasonable. Simply providing extra hand gel is unlikely to be considered a sufficient measure to justify keeping an office open.
How would an employee prove they had contracted the virus at work rather than somewhere else?
This is what lawyers call the issue of “causation”. It would be the employee’s burden to prove causation which might seem difficult but depending on the circumstances it might not be as hard as might first appear.
Under the civil law a Claimant only has to prove issues “on the balance of probabilities” (i.e. what is more likely than not). Suppose if employee X reports symptoms and goes off sick, and 5 days after the same happens to her colleagues Y and Z. It would seem quite possible that a judge might be persuaded that Y and Z contracted the virus at work from exposure to contagious X.
How much compensation might and Employer have to pay to an Employee who had contracted Coronavirus (Covid 19) at work?
This is a proverbial “how long is a piece of string?” type question. Suffice to say that if an employee did bring a claim, the amount of compensation would depend on the severity and duration of the symptoms, any loss of earnings, the amount of care and help needed from friends and family, etc. The claim is likely to be a four or five figure sum.
If tragedy struck and the employee died as a result of contracting the virus, their dependants could potentially claim compensation measured in the hundreds of thousands of pounds.
Employers have difficult choices to make. The fact that a particular precaution is very costly to a business might be the only reasonable and proportionate step to take. Requiring employees to attend work and risk their health will be harmful to morale and could result in a costly civil claim.
Please note: our employees are following lockdown rules and working from home. If you have any questions, please contact our Client Services team on firstname.lastname@example.org and they will be happy to direct you to the right person.