Health & Safety, Project Restart and Season 20/21
The 2019/20 Premier League and Championship seasons have now reached their successful conclusion following the shutdown imposed in March as a result of the COVID-19 pandemic.
This return to competitive action followed a carefully phased return to contact training in accordance with Government guidance issued to make elite sport “COVID secure”. That included measures such as regular testing of players and staff, restricting access in to training ground buildings, players changing in their cars, and frequent disinfection of all equipment. Clubs have also been required to appoint a COVID-19 officer responsible for managing and co-ordinating the club’s approach to safety.
Both Premier League and Championship clubs were subject to frequent COVID-19 testing. For the most part, those tests returned minimal positive results. However, that is, of course, not to be taken as an indication that the risk posed by COVID-19 had subsided. Indeed, as the Stage Two Guidance indicates, there is an increased risk for players and staff in moving to contact training and, ultimately, matches:
“Due to the unavoidable increased risk of transmission under Stage Two conditions, the COVID-19 officer should re-emphasise the need for all individuals engaging with them training environment to abide by government and PHE guidelines whilst away from the training facility”.
In addition to the obligation on the COVID-19 officer to re-emphasise the need for measures such as social distancing when players and staff are away from the training ground (advice of which some players fell foul), they also needed to have a clear policy in place for managing any individual who returned a positive test.
Football has to a large extent been front and centre of businesses returning to work following the COVID-19 lockdown given it received significant media attention. There was (and will continue to be) scrutiny of practices at football clubs to ensure that they are compliant.
Under health and safety legislation, clubs (as employers) have an obligation, so far as reasonably practicable, to ensure the health, safety and welfare at work of all its employees. In other words, clubs need to provide a safe working environment for their players and staff. In respect of players, that requirement is also an express term within the standard playing contract.
As this season ends, the interruption caused by COVID-19 means that next season will be quickly upon us, but the risk posed by the virus is unlikely to have subsided. Moving towards the 2020/21 season, clubs will need to ensure that as well as meeting the requirements of the guidance, they revisit their duty to carry out a suitable and sufficient assessment of risks to players and staff and, following this assessment, implement measures as necessary. Each club needs to perform its own risk assessments as requirements will inevitably differ between clubs (even if only slightly).
Clubs can expect that unannounced inspections by the Premier League/EFL will continue, while the Health and Safety Executive (HSE) also has the power to inspect premises unannounced (whether pro-active or as a response to a complaint). In such circumstances, it will not be sufficient for clubs to simply assert that they are complying with protocols given by the Premier League or EFL. Each club must demonstrate they have conducted their own risk assessment, that it is being regularly reviewed, and that they have satisfied themselves that the procedures and practices of their club create a safe working environment for their employees.
The HSE has previously given an indication of the approach they intend to take within business in general. Sarah Albon (Chief Executive of the HSE) indicated that the HSE may take a considered approach to enforcement action, suggesting that verbal/written advice and enforcement notices (requiring employers to take certain steps to rectify failings) will be given before considering criminal prosecution. Ms Albon stated:
“Inspectors can require businesses to do certain things – enforcement notices, requiring them to take particular kinds of action. In the most extreme circumstances if there is a risk of serious injury to an individual employee they can issue a notice which prohibits certain activities from taking place. Breach of those kind of enforcement notices is essentially a criminal offence and we can prosecute people who fail to do the right thing.”
While this may indicate a level of understanding that organisations are dealing with an unprecedented pandemic, this suggested approach is unlikely to bind the HSE and they will inevitably consider factors such as the seriousness of the circumstances. Clubs should also bear in mind that in recent years, the HSE have increasingly pursued charges against senior individuals within organisations, which could result in a substantial fine and/or prison sentence of up to 2 years.
As attentions quickly turn towards next season, clubs should take steps to ensure they are complying with regulatory requirements and review risk assessments and protective measures. If clubs do become the subject of regulatory investigation, we recommend they seek legal advice as soon as possible following the first contact by the inspector (even if the inspector has just arrived on site).
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication 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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