COVID-19 and RIDDOR reporting: could employers be prosecuted?
The HSE has clarified that, in certain circumstances, employers must report new cases of COVID-19 under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), which require employers and other people in charge of work premises to report and keep records of certain incidents at work. For COVID-19 cases, this can include an unintended incident at work that has led to someone’s possible or actual exposure to coronavirus; where a worker has been diagnosed with COVID-19 and there is reasonable evidence that it was caused by exposure at work; and if a worker dies as a result of occupational exposure to coronavirus.
This could have significant ramifications for organisations such as hospitals, supermarkets, waste and other key frontline facilities, where work is ongoing and the issue of the provision of personal protective equipment is paramount, and sometimes lacking. So, what should employers be doing differently?
Says Pam Loch, Solicitor and Managing Director of Loch Employment Law:
“The concern for employers with COVID-19 cases will be the ambiguity in the context of the current virus as, due to a lack of testing, it is not possible to establish whether someone has or had the virus and whether the worker was exposed to coronavirus at work due to how many cases of COVID-19 there are predicted to be.
“This certainly does not require employers to report every confirmed case as only those cases where there is reasonable evidence that the employee was exposed to COVID-19 in the workplace will need to be reported. For certain industries, such as supermarkets, it will be difficult to determine where the employee contracted the virus and the business will need to decide whether there is reasonable evidence.”
“Although the basis of the legislation and obligations on employers has not changed, the challenges they are facing to keep businesses open clearly has. Companies should review each case on an individual basis as the HSE can take enforcement action against businesses that are not compliant with the guidance, both for the incident itself and how the reporting is handled. If you think any cases are reportable, you must make a report under RIDDOR.”
The HSE has published specific guidance for businesses, including fit testing of face masks to avoid transmission and implementing social distancing measures. In addition to the reports under RIDDOR, HSE can identify employers who are not taking action to comply with current Public Health England guidance and issue enforcement notices or specific advice to employers.
“To comply with these obligations,” says Loch, “we recommend employers carry out regular risk assessments, focusing on the current guidance, and adjust the workplace accordingly. Employers should also consider implementing internal updates to their employees on the precautions which they are putting in place to protect the health and safety of staff.”
Protecting employees through the provision of PPE is a hugely contentious issue, with daily reports on the lack of sufficient protection being provided to front-line staff. If it could be proven that this lack of protection led to an employee’s contraction of Coronavirus, or even the death of an employee, could employers be facing health and safety or even corporate manslaughter convictions?
Kathryn Gilbertson, Partner, Regulatory, at Greenwoods GRM, says:
“It’s not beyond the realms of possibility that the HSE will investigate individual RIDDOR reports for COVID-19 infection and bring proceedings against employers for exposing their employees to the risk (actual or possible) of COVID-19. Whether there will be a corporate manslaughter prosecution depends on the facts of the case, the extent of the evidence and the CPS’ review of the prosecution file.
“I’m not aware that the police and HSE are conducting any corporate manslaughter investigations currently, but from the press coverage there appear to be several deaths involving medical staff and care workers who worked with insufficient or no PPE, such that they could have become infected in the workplace. So, maybe it’s a watch this space?”
Gilbertson advises that employers need to ensure:
- Staff work from home, where this is possible. Otherwise, provide effective social distancing throughout the workplace – including toilet facilities, staff kitchen/canteens and workstations – perhaps using physical barriers such as screens or markers on the floor as a reminder of the recommended two-metre distancing.
- Staff have access to water, soap and drying facilities to wash their hands or sanitisers where hand washing cannot be provided. Staff should take regular hand washing breaks even if this results in a slowing down of the production process.
- Additional cleaning of the working area with sanitisers is carried out.
- A risk assessment of working practises is carried out to identify the hazards and risks posed by COVID-19 exposure.
- Effective PPE is provided where other controls cannot be achieved.
- Records are kept of the risk assessment, the advice given to staff by briefings/emails and details of PPE provided.
These measures should be kept under constant review so that they can be updated as knowledge of the routes of infection become known.
The full HSE guidance on RIDDOR reporting and COVID-19 is available here.