COVID-19 & RIDDOR - when should companies report to the HSE?

Last updated, 16:30, 2 February 2021

As the COVID-19 pandemic began to take hold on the Country in early 2020, the HSE were quick to issue guidance which made it clear that, should a worker or other third party contract this disease in the workplace, then companies are under a legal duty to report this as a notifiable incident under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).

Although it is not a legal requirement to report all instances of COVID-19, the HSE have continued to update their guidance which now makes it clear that companies should notify the regulator when:

• An unintended incident at work has led to someone's possible or actual exposure to Coronavirus. This must be reported as a “dangerous occurrence”.

Whether such an occurrence has taken place “does not require any complex analysis, measurement, or test, but rather a reasonable judgment as to whether the circumstances give rise to a real risk or have the potential to cause significant harm”

Helpfully, the HSE have provided examples of reportable incidents, which includes a lab worker who accidentally breaks a glass vial containing Coronavirus, thereby exposing the workforce to the virus. Conversely, examples of when a report should not be made are also provided, which includes circumstances where a Police Officer is deliberately coughed on by a person with an unknown COVID-19 status.

• A worker has been diagnosed with COVID-19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of “disease”.

Although the HSE have not provided specific examples of when this would apply, they have prepared a non-exhaustive list of questions which employers should consider when assessing whether it is more likely than not that an employee's work was the source of exposure to coronavirus as opposed to general societal exposure. These include “whether or not the nature of the person's work activities increased the risk of them becoming exposed to coronavirus”; “whether or not there was any specific, identifiable incident that led to an increased risk of exposure”; and “whether or not the person's work directly brought them into contact with a known coronavirus hazard without effective control measures in place, as set out in the relevant PHE guidance, such as personal protective equipment (PPE) or social distancing.”

Where the requirement for a diagnosis is concerned, whilst this would ordinarily need to be from a registered medical practitioner, the HSE have confirmed that any official confirmation of a COVID-19 infection from a public testing body satisfies this requirement for the purposes of RIDDOR.

• A worker dies as a result of occupational exposure to COVID-19.

Again, as with cases of “disease”, there must be reasonable evidence of occupational exposure to the virus and employers should consider the identical list of questions suggested by the HSE and make a judgement based on the information available to them.

In addition to this, any death must be caused by this exposure and medical evidence such as death certificates are likely to be an important consideration when determining whether a report needs to be submitted to the HSE.

Whilst there is a clear legal requirement to report the virus in specific circumstances, employers are in an unenviable position when faced with this issue which means that, in all probability, the likelihood of all applicable cases being reported to the HSE is likely to be slim. For example, notwithstanding the additional guidance that has been published by the HSE, the question of whether there is “reasonable evidence” that the virus was contracted in the workplace rather than, for instance, whilst commuting to work on public transport, is one which is likely to be extremely difficult for employers to answer with any confidence. Employers must consider this question very carefully and assess each incident on its own merits before deciding whether it is reportable. Any failure to do this which results in 'over-reporting' is likely to result in unnecessary scrutiny and investigation by the HSE.Conversely, any failure to submit a report under RIDDOR where it is legally required, carries with it criminal sanctions and the possibility of an unlimited fine. With that in mind, employers would be well advised to make a contemporaneous record of the reasons behind any decision not to report in the event this was ever questioned by the HSE at some stage in the future. Contact our Compliance & Regulatory team today if you have any queries relating to RIDDOR or any other issue relating to health and safety.

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.