Author Bio ▼

‘Paul’s entire legal career has been spent at Eversheds Sutherland where he works as a Partner and Solicitor Advocate. Previously a criminal law academic and owner of a contracting company, Paul can empathise with the challenges facing employers. Specialising in corporate criminal defence; his experience covers health and safety, environmental, road traffic and education disciplines. He regularly defends proceedings brought by the HSE, EA, Local Authorities and the ORR. Recent experience includes acting for a contractor following a traffic death; advising a brick company following a machine trap resulting in paralysation; performing a compliance audit at various utility companies; acting for 2 ports in different inquests; acting for a distributor following radiation exposure at a warehouse; representing a manufacturer following a death on a conveyor and acting for a university following an explosion. Paul conducts his own advocacy whenever possible. He has written numerous articles for major trade publications and national newspapers. Paul leads the Health and Safety Training team which educates Eversheds’ clients on regulatory matters. He holds a Post Graduate Certificate in Education and was awarded the Lincolnshire Award of Merit in Education for outstanding contribution to that sector in his previous career as a lecturer. Paul is also a trustee of volunteer cancer charity ‘Team Verrico’.
April 17, 2020

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Coronavirus

COVID-19: Can employers be prosecuted if employees are exposed?

Amidst all the coronavirus headlines, some commentators have speculated that employers may be about to face prosecution if they don’t take all precautions possible to protect staff and third parties from infection. Paul Verrico, Partner and Sarah Valentine, Senior Associate, at Eversheds Sutherland, investigates whether that is the case.

Sarah ValentineIt is, of course, correct that employers in the UK owe duties under the Health and Safety at Work etc. Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees; such duties extending to the provision of a safe working environment to those affected and not to expose third parties to risk.

The reality of these unprecedented times is, however, that enforcement of such legislation in this context is a very unlikely outcome. Whilst the HSE have recently updated its guidance as to when COVID-19 cases will be reportable under the Reporting of Injuries, Disease and Dangerous Occurrence Regulations 2013 (RIDDOR) the likelihood is that few will satisfy the reasonable evidence criteria set out by the HSE in their accompanying guidance.

As the prevalence of COVID-19 increases in the UK population, it will be challenging for employers to establish whether or not the individual contracted the disease as a result of their work. The HSE in their reporting guidance have referred to health and social care workers who through their provision of care and treatment of an individual diagnosed with COVID-19 have subsequently developed the disease.  In these circumstances where there is a diagnosis this will satisfy the requirement of “reasonable evidence” that the exposure arose from the workplace. Similarly, one could foresee a situation where someone carrying out research with the virus being accidentally exposed – that scenario is definitely reportable.

Generally, however, the application of the reporting duties to employment sectors away from a healthcare setting is less clear-cut. Where COVID-19 testing is not available or where employers and employees cannot easily distinguish when, where or how individuals might have contracted the disease it will be left to organisations to interpret whether the reasonable evidence criteria has been satisfied. In the majority of cases unless a direct link can be established it is positively arguable that the reporting obligation is not triggered. At the time of writing there has been over 103,000 confirmed cases of COVID-19 and with the numbers increasing daily the ability to determine work-related exposure is inevitably problematic as the potential human interactions which could give rise to exposure are many and complex. For this reason it is NOT anticipated that a raft of RIDDOR notifications will be made to HSE for COVID-19.

The modern day health and safety professional is used to dealing with foreseeable risk as a function of the job. The tools of risk assessment, often deployed by facilities managers to prevent exposure to noxious substances and control legionella bacteria, are equally appropriate for deployment in this context. Just as measures are taken to prevent contaminants from spreading, risk assessments should consider mitigation measures such as hand gel, remote working and reducing or eliminating non-essential travel. Government guidance is fluid and swiftly changing; there is a need to closely monitor the situation to stay current with any measures necessary and act accordingly – if you want statutory authority, the Management of Health and Safety at Work Regulations 1999 tells us:

‘Any assessment shall be reviewed by the employer if—

  • (a)there is reason to suspect that it is no longer valid; or
  • (b)there has been a significant change in the matters to which it relates; and where as a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them.’

Coronavirus advice for employers


Some employers are asking all visitors to self-declare any exposure to affected persons or any recent visit to severely affected nations. Rather like asking employees to self-declare that their grey fleet vehicle has a valid MOT or that they have valid business insurance, such measures have limited legal value – but do serve as a challenge to all visitors to think about their personal situation and so have some limited benefit.

The law does require some groups to have specific risk assessments: young persons and pregnant women are specifically safeguarded; whilst there is no specific protection for those with a disability, sensible risk management means that individual risk assessments should be carried out for those who have a self-declared health condition which could increase their risk profile. Home working may be recommended in some circumstances for such staff.

In the face of the pandemic, many employers are reminding staff and contractors to tell them about any specific individual medical advice which could affect the assessment. Duty holders will use this information to review their risk assessment and if necessary to adjust working conditions accordingly. Employees can ask to see the outcome of the risk assessment and the employer must show it to the individual.

The message then is simple: act responsibly and ethically, not out of fear of prosecution but out of an appropriate sense of accountability to staff and customer stakeholders. Stay current and do all that is reasonably practicable based on government advice and an ever changing situation.

This article is current as of 17 April 2020.

Responding to COVID-19 – What does your organisation need to do to stay on the right side of the criminal law?

Download: April 2020 Legislation Update

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  • Coronavirus legislation;
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  • Grenfell;
  • Changes to workplace exposure limits;
  • Key cases in recent months;
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April 2020 Legislation eBook

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Peter Maidment
Peter Maidment
6 months ago

At last someone form the H&S community with a reasoned approach rather than the usual fear inducing – you will go to prison if your employee contracts coronavirus!!
Thanks for a very useful article.

Peter
H&S Cansultant

Malcolm Tullett
Malcolm Tullett
6 months ago

Well done Paul, informative and well-reasoned article, as always.

Steven Nagle
Steven Nagle
6 months ago

Some good sense. The only thing that is going to inhibit this is the practice of ‘real life’ where competitive tendering has put the ki-bosh on flexibility.

Karen Duggan
Karen Duggan
6 months ago

Doing the right thing is the best way to protect employees, and help them to stand by your company in what is probably going to be a tumultuous few months. Better we stick together for the common good. Good article Paul.

Martin Taylor
Martin Taylor
6 months ago

Any thoughts on civil litigation – is this going to be an area open for industrial compensation claims and what would be you minimum expectation of employees to protect themselves?

Louise Bland
Louise Bland
6 months ago
Reply to  Martin Taylor

Martin, I doubt this will open an area for industrial compensation/civil claims. It will be almost impossible to establish that anyone has contracted the virus in the workplace in most scenarios.

David Balfour
David Balfour
6 months ago

Hse guidance on riddor reporting “Infections that could have been acquired as easily in the community as in work are not reportable, unless the infection was definitely acquired at work.”

If individual people are being tracked for who they meet and who subsequently gets ill I think it will be possible to show some people who contract it, got it at work.

Paul
Paul
6 months ago

Don’t no if anybody has he answer but here goes,
My company sends us to people’s houses to under take repairs, but have not issued us with any ppe . It’s that legal and do they have a legal responsibility

Bob
Bob
5 months ago
Reply to  Paul

I would like an answer on this .
I’m a delivery driver with the same issues and concerns .

Gareth Davis
Gareth Davis
5 months ago
Reply to  Paul

Yes they can as long as suitable controls are in place. These might include limiting repairs only to those that are essential or where a risk to life exists without the work being carried out. Social distancing can be maintained even in someone’s home but doing things like asking them to stay in a separate room and not getting closer than 2m during the repair. Cleaning the surfaces before and after the job is critical. Also all workers should be given instructions on regular hand washing/disinfection and good respiratory hygiene.

Anna
Anna
6 months ago

My partner is working for a company based in Rotherham whom are threatening staff to force them to travel to London for a project. When the staff expressed concerns over their safety they were told that there contracts would be reviewed if they didn’t. The employers are not adhering to any measures to protect there staff i.e cleansing areas after members of staff has symptoms of the coronavirus snd self-isolated. There are a large amount of people working at close proximity with no mention of the two meter rule or washing of hands. The office staff do not need to… Read more »

Anon
Anon
6 months ago

The place i work at is cramming people into the warehouse theres no room to social distance- when i brought this up to the manager he said its impossible to do that here and its going to get worse as we bring more people in- surely this cant be right- theyve refused to do split shifts to help with conditions and seperate staff

Julie
Julie
5 months ago

Unless I have read this wrong I thought it was Riddor https://www.hse.gov.uk/news/riddor-reporting-coronavirus.htm

Gareth Davis
Gareth Davis
5 months ago

This article is unfortunately out of date now that the HSE have clarified that individual cases of covid-19 are in fact RIDDOR reportable if it was a work-related and unintended exposure (even if only possible!). The examples given by the HSE are from the health-care sector but this will have implications for other businesses too. More guidance on the applicability of this and some steer as to what we consider to be ‘reasonable evidence’ would be helpful!

Mick
Mick
5 months ago

Hi are you thinking of adding any advice on reopening of buildings?

Gerwyn
Gerwyn
5 months ago

Are visors a good protection for the Coronavirus risk in the work place Abattoir environment will it reduce the risk.

Will
Will
5 months ago

Hi, I would like some information on what an employer should do if two of their employees has tested positive for COVID-19? Are they to inform other staff? The affected area I’m referring to is a small group home with a small group of carers and service users, very close knit, any information would be appreciated.

Steph Jones
Steph Jones
4 months ago

This is a useful article, thank you but what would the RIDDOR advice be for the employer of an engineering consultant who needs to make a site visit to a construction site? Clearly the employer would ensure the SOP was satisfactory but would they need to carry out a risk assessment for every site visited? Also what would be classed as an ‘unintended incident’ that leads to someone’s possible or actual exposure to covid-19?

Pam Holmes
Pam Holmes
4 months ago

I work for a large Home Provider. We have had 6 confirmed cases this week and 2 to follow. We are still being made to go in the office even though management are totally aware. All they have done is given us a mask and told us to wash our hands. On asking to to work from home the attitude why are you so special, you could get in going to the shop. The manager refuses to pay to have the office deep cleaned and even though there is a company contingency plan in palce they are refuseing to do… Read more »

Jonathan
Jonathan
4 months ago

Hi, can I ask if the above is shown as correct process, what would be the position if the employee, due to layout and size of shop, that the 2 metre social distancing would not be possible….would the Company then be liable for allowing an unsafe environment to exist?

steve downing
steve downing
4 months ago

Actually you could reasonably prove an infection was passed say between 2 employees who worked close together if they both got a dna test of the virus. This would be nearly as good as a dna test on samples left by a criminal.

sandra allen
sandra allen
4 months ago

i work in student accommodation as a housekeeper there isn’t any safety measures in place and the manager is still inviting contractors to the building I’m feeling very unsafe.

jean
jean
4 months ago

My niece who works at a residential care home has ‘discovered’ that 7 of her collegues (through whats app!) have tested posative for covid19, The management team have not disclosed this to my niece or the rest of team before or during their shifts, but have sent them for testing. Question Should they have pulled the team aside and told them that some of their collegues have tested posative and have been in close contact with them the previous day?. Should my niece who lives with her grandad and is over 70 be told that she should return for her… Read more »