COVID-19: The risk of prosecution

Coming on top of the incessant and challenging media coverage about employees (and others in health and social care settings) being exposed to the risk of contracting coronavirus in the workplace, the HSE’s recent publication of specific guidance about the duty to report certain COVID-19 cases (under RIDDOR — the Reporting of Injuries, Disease and Dangerous Occurrence Regulations 2013) will have set alarm bells ringing for many. This update seeks to remind employers of the areas that are likely to be of most interest or concern to enforcing authorities when investigating reports.

For obvious reasons, most of the public’s attention has centred on concerns about those working in health and social care, although a wider range of employers should pay heed to the risk. For example, those whose employees come into direct contact with members of the public as a result of their daily work are likely to face scrutiny, but (where the circumstances warrant it) investigators may also be interested in cases where employers are said to have failed (for example):

• to do enough to help their employees to work from home – or, worse still, have insisted upon them going into work when it was not necessary;
• to have sufficient regard to risks to their mental health and wellbeing, arising from the new circumstances in which they are working, and the additional pressures that it might bring to bear
• (when lockdown measures are released) to plan properly, and assess risk suitably and sufficiently, when staff return to the workplace – at which point issues around workplace design, methods of working, office hygiene and other environmental factors will all need to be reviewed carefully.

Basic duties

The basic duty owed by an employer towards their employees is set out in Section 2 of the Health & Safety at Work etc Act 1974 (the 1974 Act).  It sets the bar high and COVID-19 has not changed that. The employer has a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Plainly, “ensure” is an absolute term – it requires the employer to make absolutely certain of the matters in question, subject to the single qualification about reasonable practicability. 

For practical purposes, employers owe similar obligations (under Section 3 of the 1974 Act) in relation to people (other than their employees) who may be exposed to risks to their health and safety – but not, in this instance, their welfare – arising from the way the employer conducts business.

The test of reasonable practicability must always be addressed on a case specific basis, but it is not the same as simply doing all that might be considered reasonable. In essence, where a material risk of serious adverse consequences (death or serious injury) can be identified, the employer must do whatever can be done to address the risk, unless they can show that the necessary steps would have been disproportionately difficult, expensive or time consuming in the circumstances.

An employer who wishes to argue (in the face of evidence that somebody’s health, safety or, in the case of employees, welfare was not secured) that they did everything reasonably practicable must prove that to the satisfaction of the court, on the balance of probabilities. It is not for the prosecution to prove that reasonably practicable steps were available but were not taken. The burden of proof in these circumstances is reversed and rests with the duty-holder.

Current areas for concern

In the current climate, the main focus is likely to be upon the provision of personal protective equipment (‘PPE’), although other aspects of working arrangements might also need to be considered. For example, can an employer in a health or social care setting justify X number of employees coming into contact with those who have symptoms of coronavirus, when it might have been possible for a smaller number of employees (perhaps more suitably equipped) to have the closest contact? In light of emerging evidence to suggest that particular categories of employees might be more vulnerable – note, for example, the high percentage of deaths from front-line professional from BAME backgrounds, and the higher mortality rate among men than women – how long will it be before it is argued that more should be done to reduce the risks to those from the more statistically vulnerable groups?

In the transport environment, following reports of the deaths of some bus drivers due to exposure to COVID-19, questions are being asked about why public transport operators continued to allow passengers to embark at the front of the bus, and engage directly with the driver, when the need for them to do so could have been avoided. 

PPE Regulations

The focus on PPE will result in enforcing authorities consulting the Personal Protective Equipment at Work Regulations 1992, which impose a general obligation upon employers to ensure that workers at risk are supplied with “suitable” PPE “…except where and the extent that such risk has been adequately controlled by other means which are equally or more effective”. Where multiple items of equipment are supplied they must be compatible with each other and the provision of any equipment should follow a suitable assessment to determine what will be required. 

Even after the equipment has been supplied, employers must ensure that it is maintained (including being replaced or cleaned as appropriate) in an efficient state, in efficient working order and in good repair – and they must ensure that employees receive such instruction, information and training as is adequate to enable them to understand the risks, to meet the purpose for which the equipment has been provided and to ensure that it remains appropriate for use. 

It is for employers to ensure that employees use the equipment properly, but employees owe a concurrent duty to use the equipment provided in accordance with the instructions they receive.

Risk assessments

More generally, of course, employers owe a duty under the Management of Health and Safety Regulations 1999 to undertake “suitable and sufficient” assessments of the risks to which their employees are exposed whilst at work, so that appropriate steps to manage the risk can be implemented. Such assessments should be re-visited in light of any change in circumstances that might materially affect the validity of the assessment. 

In the real world, faced with previously unforeseen and almost unimaginable challenges, it seems highly likely that some employers will have been fighting fires, doing their best to cope with unprecedented demands upon their services and resources, without finding the time to manage and update the underlying paper-trail to capture their reasoning. The extent to which the regulators and perhaps the courts might be sympathetic to concerns around poor documentation in those circumstances remains to be seen, and any arguments by employers in defence or mitigation of criticism will need to be presented thoughtfully. 

It is important to note, however, that there is a technical distinction between the fundamental duty to assess risk (and to introduce appropriate control measures consequent upon the assessment) and the separate duty to make a written record of the assessment. In practice, many employers have probably undertaken fresh risk assessments, or are assessing evolving situations on a dynamic basis, and will have taken the actions necessary to meet the substantive requirement, even if the paper trail does not fully support it. In those circumstances, there would be good grounds for arguing that any offence is essentially limited to an administrative or documentary shortcoming, rather than the failure to assess or address risk appropriately.

Individuals at risk of prosecution

Whilst the majority of prosecutions by enforcing authorities target corporate defendants, individuals may also face action under existing legislation, notably if either: (1) they personally fail to take reasonable care for others whose health and safety might be affected by how they do their job (Section 7 of the 1974 Act); or (b) they are in a senior role and relevant breach of duty by their employers can be shown to be attributable to their neglect or to have resulted from their consent or connivance – essentially turning a blind eye to the need to act upon what they knew or ought to have known.

Whereas corporate offenders essentially face purely financial penalties in most cases, guilty individuals can face imprisonment.

Corporate manslaughter

The Corporate Manslaughter and Corporate Homicide Act  2007 (“the 2007 Act”) provides that an organisation will be guilty of the offence of corporate manslaughter if the way in which its activities are managed or organised causes the death of a person to whom it owes a relevant duty of care – provided the death is caused by a gross breach of that duty, and if a substantial element of the breach is to be found in the way that the organisation’s activities are managed or organised by its senior management.

Importantly, however, the Act goes on to make a number of important exclusions from the definition of a relevant duty of care. First, decisions made by a public authority around matters of public policy “including in particular the allocation of public resources or the weighing of competing public interests” fall outside the definition. 

Furthermore, when dealing with emergencies, the way in which an organisation responds to an emergency does not form part of the relevant duty of care in so far as it relates to the way in which medical treatment is carried out, or decisions are made as to the order in which persons are to be given treatment.

It is important to note, however, that these exclusions do not apply to the organisation’s duty of care in so far as it is owed to its own employees, to other persons working for the organisation or to any duty owed as the occupier of premises. In other words, the underlying purpose of the exclusion appears to be that organisations providing emergency treatment will not be held to account if they decide to prioritise particular areas of treatment or classes of patients in ways which are subsequently criticised – but they are offered no relief in relation to their underlying obligations as employers and occupiers of premises.

Looking specifically at the health and social care sector, organisations could still find themselves under Police/CPS scrutiny under the 2007 Act if evidence gathered under investigation revealed gross failures that contributed more than minimally, trivially or negligibly, to the death of an employee or resident, if it could be shown that the gross breach substantially resulted from failures by senior management to manage or organise the organisation’s affairs properly. 

In the current climate, this issue most likely to be relevant will be senior management decisions concerning the provision of suitable PPE and/or allowing staff to work in conditions in which they (or residents in their facility) were exposed to the virus without such PPE (or relevant training) being supplied. 

Again, every case must be considered on its own facts and it is suggested that, in the absence of culpable personal failings by senior management (being effectively tantamount to turning a blind eye to what they knew, or wilfully neglecting to ascertain and understand what was required) a prosecution for this offence is unlikely in respect of actions taken in the early stages of responding to this pandemic. However, as knowledge and awareness grows, it would be fair to say that expectations will rise, and a willingness to forgive or tolerate shortcomings will diminish. 

Conclusion

One would expect enforcing authorities and the courts to allow a significant degree of latitude to organisations and employers who have attempted to rise to these exceptional challenges to the best of their ability, even if they have not achieved the gold standard response, provided they can demonstrate that best endeavours have been used and that they display a continued willingness to learn, adapt and improve in light of evolving awareness.  

However, all basic legal duties remain applicable. There can be no room for complacency, and those identified as the most culpable offenders should expect to be dealt with harshly.

If the content of this update raises any issues for you, or you would like to discuss further, please liaise with Dewi Ap-Thomas, Partner, Head of Regulatory at dewi.ap-thomas@weightmans.com or Crispin Kenyon, Partner at crispin.kenyon@weightmans.com.