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’.
March 13, 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 at Eversheds Sutherland, investigates whether that is the case.

Paul VerricoIt 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. The HSE is involved in trying to help co-ordinate the government’s response to the global pandemic; individual COVID-19 cases are not RIDDOR reportable so would not fall for investigation and it would be near impossible to prove that an individual contracted the disease from exposure at their place of work. In this context, the regulatory framework should be seen as an enabler to assisting duty holders with the tools to ‘do the right thing’ by those they affect rather than as a stick to ensure measures are taken. In many ways, the burden is on the business to behave ethically and appropriately, rather than take measures driven by fear or fail to do anything out of misguided complacency. Potential regulatory sanction should not be used as a driver to achieve outcomes – this is about looking after people, rather than avoiding censure.

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.


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

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Peter Maidment
Peter Maidment

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

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

Steven Nagle
Steven Nagle

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

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

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

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

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

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

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

Anna
Anna

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

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