The current pandemic has undoubtedly impacted the vast majority, if not all of our daily lives in terms of both our working and personal circumstances.
As the global COVID-19 pandemic continues, there are concerns that employers may face claims for personal injury and loss by employees alleging that they contracted the virus through some form of negligence or breach of duty on the part of the employer.
So, as an employer, what can I do to protect myself from potential claims?
In a nutshell, employers should continue to comply with their duties to take all reasonable care for the health and safety of their employees.
They should ensure that they:
comply with all Government guidance that has been produced, specific to their business and industry;
undertake appropriate risk assessments considering the risks to their employees and business, and in particular consider where there may be a risk of the transmission of the COVID-19 virus; and
- off the back of those risk assessments, take appropriate steps and actions to mitigate the risk of the transmission of the COVID-19 virus to the lowest level practicable within their business and workplace.
The risk assessments that are undertaken, and then the practices and procedures that are put in place off the back of those risk assessments, should be communicated to all employees, and steps taken to ensure that they are enforced by their employees accordingly.
Those practices and procedures should be kept under constant review, in particular in light of the fact that the Government guidance is changing so rapidly, often on a week by week basis, and employers will need to be alive to the changes in the guidance that affect them.
Where risk assessments suggest that appropriate Personal Protective Equipment (“PPE”) should be provided, employees should be given guidance on how to use that PPE properly.
If a claim for personal injury is then brought against an employer, provided that that employer can prove that they undertook an adequate risk assessment, followed the Government guidance, put in place suitable and sufficient measures that they ensured were enforced, as well as providing appropriate PPE where necessary, that employer should then be in a good position to defend any potential claims for personal injury and loss being made against them.
What types of personal injury claim could be brought against an employer as a result of COVID-19?
1. The obvious claims that could be made against employers by employees would be on the basis that their employer failed to consider the risk of infection to their employees, and did not take all practicable steps to reduce that risk such that the employee then contracted the COVID-19 virus.
If an employer has not complied with its duties as detailed above, then it may find itself with a potential claim for personal injury and loss.
2. There are however other potential claims for personal injury and loss that could come about as perhaps a more indirect result of the COVID-19 virus which relate to the employment conditions that employees were then placed into because of the pandemic.
A large number of the workforce are now working from home either on a temporary or permanent basis and they may have problems with their home working station, which could result in potential physical or psychological symptom.
Employers have the same health and safety duties to home workers as to those in the workplace, and again therefore it is important that:
work station risk assessments are undertaken (either by the employer or employee);
appropriate equipment / PPE is provided where possible; and
employers put in place sufficient support for home working employees from a mental health perspective to prevent feelings of isolation and abandonment resulting in stress.
3. Other potential claims / issues that employers should consider could result from a change in the amount or type of work that employees are undertaking following a change in the structure, furloughing, and in some cases change of roles that some employees may now be faced with.
These changes could result in employees being either over (or under) worked and in certain circumstances, could then lead to claims for potentially physical, but more likely psychological damage arising out of the stress that they have been put under because of their work and change in working circumstances.
Again, it is important that employers are alive to these issues, and put in place appropriate practices and procedures to monitor and protect their employees as far as practicable.
Despite the concerns that employers may have about potential personal injury claims, there is however one big difficulty that employees may face when it comes to potentially bringing claims against their employer if they contract the COVID-19 virus.
That employee needs to be able to prove:
that not only their employer breached their duty of care to them, and did not take all reasonable steps to ensure their health and safety at work in light of COVID-19; but in addition
it was that breach that caused them to contract the virus, as opposed to them being infected from the many other sources and contacts that they encounter in their day to day lives.
This may be an extremely difficult hurdle for employees to overcome and prove when pursuing claims against their employers, and the test in all likelihood will be that their employer, by way of their breach and negligence, materially contributed to the risk such that it was likely that the employee contracted the virus directly as a result of their employers actions (or lack of).
Will I be covered under my Employers Liability insurance policy should any claims for COVID-19 be brought against me?
Most employers should have in place Employers Liability insurance which should cover any potential claims for personal injury and loss if a claim against them is being made by their employee for breach of their duty of care leading to contraction of the COVID-19 virus.
It is important that as an employer you check that you have an insurance policy in place, that the policy has not lapsed, and that there are no conditions or clauses within that policy that might preclude you from being indemnified accordingly.
Should you receive any notification or intention that a claim for personal injury and loss as a result of an employee contracting COVID-19 may be brought, you should notify your insurer immediately, and check the terms of your policy accordingly.
Should you have any concerns about potential claims for personal injury and loss as a result of the COVID-19 virus, or have any other health and safety queries with respect to your duties as an employer working during the pandemic, please do not hesitate to contact the team at Prettys on 01473 232121.