Coronavirus: Health & Safety law – are companies at risk of prosecution?
With over 2,600 confirmed cases of the coronavirus in the UK, including 137 fatalities, companies are rightly concerned about their exposure to a potential criminal investigation should their staff contract the virus.
After all, it is a fundamental requirement under the Health and Safety at Work Act that employers should ensure, so far as is reasonably practicable, the health, safety and welfare of their employees in the workplace. As part of their duties, employers are under an obligation to carry out risk assessments and implement safe systems of work so that risks to their staff, and any third parties who may be affected by their operations, are either eradicated or, if this is not possible, reduced as much as possible.
However, given the nature of the ongoing pandemic, it is very unlikely that the Health and Safety Executive (HSE) will be looking to prosecute companies simply because their staff have contracted the virus. First of all, COVID-19 cases are not reportable to the HSE under the Reporting of Injuries Diseases and Dangerous Occurrences Regulations (RIDDOR) and, even if they were, it would be extremely difficult to prove that a particular employee contracted the virus in the workplace!
Whilst that is so, companies should not take this as a sign that they can take their foot off the gas, where their duties under health and safety law are concerned. Quite the opposite. As a direct result of the ongoing pandemic, the nature of how most businesses are operating has literally changed overnight as a result of daily bulletins received from the Government and Department of Health.
Most companies have already implemented basic protection measures such as providing hand gel, eliminating non-essential travel, and requesting employees to declare any pre-existing health conditions, that may mean that they are at an increased risk from COVID-19. On a more extreme level, most companies are also in the process of scaling down their presence in the workplace, whether this be in an office, factory, or construction site, as a result or amended shift patterns and working from home, in order to limit the prospect of the virus being transferred between staff.
These specific changes, particularly in circumstances where companies are operating with a skeleton service, may well expose employees to different and previously unidentified risks in the workplace and, therefore, it is imperative that all risk assessments are properly reviewed and amended where there is reason to suspect they are no longer valid. As this is a legal requirement under the Management of Health and Safety at Work Regulations, any company who fails to undertake this task will, inevitably, expose themselves to a greater risk of prosecution by the HSE!
Companies need to remain flexible and take note of the guidance that is being provided by the HSE on an almost daily basis, a note of which being regularly updated on our website. You will see from our note on the HSE guidance that, in recent days, and in direct response to growing numbers of employees working from home, we have seen welcome advice on lone working and employers obligations under the Health and Safety (Display Screen Equipment) Regulations. Following reports of some companies refusing to allow drivers to use their welfare facilities, the HSE have also responded publicly, by circulating a reminder of the requirements that are set out in the Workplace (Health, Safety and Welfare) Regulations.
Whilst the ongoing pandemic is clearly very worrying for all organisations, from a health and safety standpoint, the message is clear. Now, more than ever, it is imperative that companies take note of the ongoing guidance that is being circulated by the Government and HSE and, in response to ever changing work patterns, remain flexible when it comes to reviewing the validity of their risk assessments and safe systems of work.
Contact our Compliance & Regulatory team today for specialist health and safety advice and representation.
If you would like to talk through the consequences for your business, call our Coronavirus Helpline on 0845 404 4111 for a free consultation (on appropriate commercial enquiries only) or e-mail us and one of our Helpline team will get in touch.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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