(This article does not constitute legal advice. Legal advice should be sought to address specific circumstances relating to COVID-19 and how it affects employers, employees and others. Information on COVID-19 is changing on a daily basis and the first port of call for public health guidance should be Public Health England.)
Much has already been written about the novel strain of Coronavirus, that has been given the name COVID-19. There is already a mountain of advice online, from the Government, Public Health Wales, Public Health England (PHE), ACAS, employment lawyers, commercial solicitors, HR consultants and of course the regular news outlets. The advice is all well intended in an attempt to help us all navigate our way through, what has now been designated by the World Health Organisation,(WHO), as a pandemic.
The problem for anyone seeking to provide anything like strongly reliable advice, is that no sooner has the article been written, than it may well be out of date. With that caveat, here goes….
This blog intends to focus on a few specific Coronavirus related legal issues, as they impact on the relationship between employer and their employees.
What duty of care does my employer owe to me whilst I’m at work?
An employer owes his employees a duty of care in common law. By common law we mean that the ‘duty’ is not written down in an act of Parliament but one that has come about due to custom i.e. a practice that has become law over a period of time.
The common law duty of care can be defined as ‘a duty to take care of you whilst you are at work’. He must take reasonable care of your safety, avoid exposing you to unnecessary risks and ensure a safe system of working.
The common law also imposes a duty on your employer not to behave in a manner calculated or likely to destroy, or seriously damage the relationship of trust and confidence between you.
What about any acts of parliament that affect health and safety at work?
The most important act of parliament i.e. legislation, covering this area is the Health and Safety at Work Act 1974. It is usually referred to at HASWA or simply HSWA. It sets out the general duties which:
- employers have towards employees and members of the public
- employees have to themselves and to each other
- certain self-employed have towards themselves and others
How does this all relate to Coronavirus?
We’ve already established that an employer owes his workers a duty of care to keep them safe at work. From HASAW, we can also see that employees owe a duty to each other: a duty to take care of their own health and safety and that of other co-workers who may be affected by their actions.
Employers and employees are both understandably concerned about the risk of catching COVID-19 whilst at work. Aware of these concerns, the Government in conjunction with PHE have produced a document which sets out guidance specifically aimed at employees and businesses. It includes advice on:
- what the novel coronavirus, COVID-19 is.
- how to help prevent spread of all respiratory infections including COVID-19.
- what to do if someone with suspected or confirmed to have COVID-19 has been in a workplace setting.
- what advice to give to individuals who have travelled to specific areas, as outlined by the Chief Medical Officer.
- advice for the certification of absence from work resulting from Covid-19.
The PHE’s advice on how to contain the spread of the disease within the workforce (and elsewhere) focuses on:
- Self-isolation for particular groups of people (those recently returned from high risk countries, those who are awaiting test results for COVID19 and those who have been in close contact with someone who has COVID19).
- The provision of hygiene guidance. In this respect PHE advises that you:
- cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze.
- put used tissues in the bin straight away
- wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available.
- try to avoid close contact with people who are unwell
- clean and disinfect frequently touched objects and surfaces
- do not touch your eyes, nose or mouth if your hands are not clean
The government’s advice on the wearing of face masks by employees as a means of protection is quite clear. Section 7 of the guidance provides as follows:
“Employees are not recommended to wear facemasks (also known as surgical masks or respirators) to protect against the virus. Facemasks are only recommended to be worn by symptomatic individuals (advised by a healthcare worker) to reduce the risk of transmitting the infection to other people.”
PHE recommends that the best way to reduce any risk of infection is good hygiene and avoiding direct or close contact (closer than 2 metres) with any potentially infected person.
Any member of staff who deals with members of the public from behind a full screen will be protected from airborne particles.”
What about shop workers or other workers who have a customer facing job? Should they not be supplied with masks?
An interesting question given that an employer owes a common law duty of care to take care of employees whilst they are at work. The employer must take reasonable care of the employees’ safety, avoid exposing them to unnecessary risks and ensure a safe system of working.
Could it be argued that by not providing workers who serve customers over a till or counter, with masks, that employers would be breaching their duty of care to their employee by exposing them to unnecessary risks, of getting COVID-19 from a customer who has the disease or is carrying it?
If an employee does then contract Coronavirus, might they be able to make an accident at work claim against their employer?
We don’t think that this type of claim would be likely to succeed. By not providing a mask, the employer is following the governments clear advice, that masks are not recommended.
What would a judge at court be likely to say? Probably, that the employer is seen to be doing his best to take reasonable care of his employees’ safety so long as he ensures that they have been provided with easily accessible hygiene facilities such as hand sanitiser and tissues, encourages their regular use and as long as the premises are being sanitised regularly as well.In other words follows PHEs advice.
Even if the employer hadn’t taken the step of providing basic hygiene facilities, any claim would be likely to fail on the basis that it would be almost impossible to track down who spread the virus to the employee. At the present time we are all still going about our daily business freely (except for those who have been advised to self-isolate). There are numerous situations where an employee might have come into contact with the person who passed on the disease – public transport, the pub, whilst out shopping etc.
Therefore, we very much doubt that an employer would be held responsible for an employee getting Cornonavirus in this scenario.
Public Health England is currently advising that certain groups of people should self-isolate. These are:
- People who are waiting for a COVID-19 test result
- People who are identified as being a close contact of someone with coronavirus
- Returning travellers from specified areas
Most of those who identify themselves as falling within one of these groups are likely to heed the advice to self-isolate at home without being told not to come in by their bosses.
However, if they decide that they want to come into work, what should their employer do?
Whilst PHEs advice is just that, advice (it isn’t mandatory), an employer faced with this situation must bear in mind his duty to ensure the safety of all his employees. Therefore, if they have not done so already, employers should consider introducing new rules to make it mandatory for employees who fall into one of the groups who’ve been advised to self-isolate, to stay away from work.
What if an employee fails to tell anyone that he is in one of the categories of people who should self-isolate, but comes into work and then passes on COVID-19 to a fellow employee or employees?
Where would the employer stand? On the face of it, if the employee is concealing the fact that he should be self-isolating, toy would assume that an employer couldn’t be held liable, if the rogue employee comes to work and spreads the disease.
However, there is something in the law of tort, called the doctrine of ‘vicarious liability’. This can be described as a situation where person A is held to be liable for the torts (wrongdoing) of person B, even though person A did not commit the act himself.
This can be applied to cases where an employer is held responsible for the actions of an employee, if it is something that the employee has done wrong, ‘in the course of their employment’ or, as decided by a 2001 legal case, is something ‘so closely connected with his employment that it would be fair, just and reasonable to hold the employer vicariously liable.’
Can an employer be held responsible for this rogue employee who has failed to disclose that he should be self-isolating but instead comes into work and causes fellow colleagues to get COVID19?
This strange legal argument called vicarious liability suggests that there may be a possibility that the employer could be held legally liable at court, if any of the employees who caught COVID19 from the rogue employee were to bring personal injury claims against their employer.
In fact, a recent case involving Morrisons Supermarkets, may have strengthened the argument for making employers responsible for the actions of rogue employees, even no blame can be attached to the company for the errant employees’ actions. This was the decision in the case of Wm Morrisons Supermarkets v Various Claimants , a decision which Morrisons has appealed to the country’s highest court, the Supreme Court. We await to hear whether Morrisons will succeed in their appeal to try and get the decision overturned.
Proof of whether the rogue employee was the one who passed on COVID19 to a colleague or colleagues, may again be difficult to prove, though. For any claim to succeed, the person brining the claim must prove ‘causation.’ i.e. that the person you are saying is responsible for the injury or illness that you have suffered, can be proved to have caused it. That would be difficult to do.
Putting everything into perspective
The reality is that we are living through a very unusual and worrying period. As a result, lots of issues are being thrown up that there are no definitive answers to. Advice from the authorities is well intended and helpful but can’t cover every situation that may arise and could at times prove to be wrong.
There’s a lot of strain on both business owners as well as on employees. In terms of fulfilling their duty of care to their employees, employers should be:
- Examining any current risk assessments, they have in place.
- Considering whether a specific risk assessment is required to deal with the risks posed by COVID19
- Ensuring that policies and procedures are looked at with a view to adding to or amending, to take account of COVID19.
- Making sure that employees who have to come into work are provided with adequate personal hygiene facilities and ensuring that the premises are kept clean and sanitised regularly.
- Trying to offer as much agile working as possible.
- Listening to employees concerns and being empathetic to them – trying to accommodate them as much as possible
- Making sure that employees are aware of their obligations to self-isolate if they are advised to do so and to make them aware of their obligations to their co-workers in that respect.
From an employer’s liability point of view, as long as companies are being proactive in their efforts to look after employees during these difficult times , then in our opinion an objective viewpoint is likely to be that they are doing their best to take reasonable care of their employees safety.