How has pandemic changed workplace personal injury claims?
Workplace safety is at the forefront of the COVID-19 pandemic, not just for frontline healthcare workers, but for all industries and professions.
Thompsons Solicitors says it has seen a reduction in accident at work claims since March 2020, but that the reduction can almost exclusively be attributed to the furlough scheme, rather than improvements in workplace safety. Furthermore, it says claim numbers have now returned to pre-pandemic levels, and additional issues have also emerged.
The firm says it has seen a number of enquiries from workers infected with COVID-19 regarding bringing personal injury claims against employers.
In assessing these claims, the normal principles of personal injury will apply. The burden of proof rests with the claimant to prove that their employer breached their duty of care in some substantive way AND that, on the balance of probabilities, their contraction of COVID-19 was caused by this breach of duty.
Meanwhile, employers will need to show that they prepared and followed COVID-19 specific risk assessments which considered:
- Protecting people who are at higher risk
- Social distancing
- PPE and face coverings
- Remote working.
Once a significant breach of duty is established, the employee would then need to prove, on the balance of probabilities, that they would not have become infected had their employer acted as they should have. This is likely to prove a key battleground, given the state of medical knowledge as to the mechanism of transmission.
Home working could also lead to an increase in claims due to the associated risk of musculoskeletal injuries. Many companies are now implementing agile working policies, whereby their employees will continue to work at least part of their week at home. With this comes the obligation on the employer to consider any associated risks, the most obvious being an ergonomically appropriate workstations and equipment.
As the Workplace (Health Safety and Welfare) Regulations 1992 do not apply to domestic premises, the most relevant Regulations for the employer to consider will be the Health and Safety (Display Screen Equipment) Regulations 1992.
Chief among these duties is Regulation 2, which requires an employer to carry out a suitable and sufficient risk analysis of the workstation. HSE guidance states that if workers use display screen equipment daily as part of their normal work, continuously for an hour or more, employers must carry out a workstation assessment focusing on:
- The whole workstation, including equipment, furniture, and work conditions
- The job being done
- Any special requirements, for example a user with a disability.
HSE further advises that, where employers make working from home arrangements permanent, they should explain how to carry out full workstation assessments and provide workers with appropriate equipment and advice on control measures.
Inevitably these cases will be fact-specific, but employees who notify their employer of relevant symptoms or pre-existing musculoskeletal injuries are likely to be in a stronger position.
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