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The under reporting of COVID-19 RIDDOR and the adequacy of the HSE guidance on respiratory protection.

Professor Agius suggests that the current HSE guidance on when RIDDOR reports are made, requires revision.

In a cogently argued article for the Journal of Personal Injury Litigation, June 2021 [JP1 Law 2021 2.69-77] Professor Raymond M Agius examines the role of the coroners courts and the HSE during the COVID-19 pandemic.

Professor Agius suggests that the current HSE guidance on when RIDDOR reports are made, requires revision.

Further, he argues that the 21,602 reports made to January 2021 is likely to be an underestimate of the true picture ,for two main reasons;

  1. HSE guidance states that work with the general public (as opposed to contact with someone who is infected) is not considered evidence to merit a report on its’ own.

    This it is argued ignores ONS data and other epidemiological evidence that public facing roles carry a higher risk of contracting the disease.

  2. HSE guidance only requires the employer to file a report if there has been “contact with the hazard without adequate protection”.

The HSE advice on respiratory protective equipment mirrors that of Public Health England (PHE), in requiring filtered masks (offering many times the level of protection than that offered by a surgical mask), only where there is contact with “aerosol generating procedures”.

This Professor Agius argues such guidance falls short of what should have been recommended, given the airborne nature of virus transmission through activities such as talking and coughing. Employers relying upon surgical masks or face coverings as ‘adequate protection’ may in many instances be working to mis-guided standards.

Consequently, both factors have caused systemic under reporting of COVID-19 transmission in the workplace.

This, it is argued, conjoined with the HSE’s failings to meet its’ own advisory standards to investigate each case of “transmission through bacterial agents” has led to missed opportunities to investigate and prevent future occurrences.

Our comment:

The debate on the adequacy of respiratory protective equipment is one likely to rage long after we have experienced a third or possibly fourth wave of infections.

It would be fair to conclude that the advice on respiratory protective equipment issued by both Public Health England and the HSE at the start of the pandemic, represented a pragmatic compromise, reflecting the availability/shortages of PPE generally, limited supply of respirators such as FFP2 and other FFP3 types and the need to ensure that the latter were provided to front line Nurses and Consultants working with COVID patients and engaged in aerosol generating surgical procedure.

It would of course make little sense for either Public Health England or the HSE to issue standards on respirators which no employer or organisation could meet, either practically or financially .This would only have led to “key work” to include manufacturing and retail, grinding to a halt, with far-reaching consequences for the country.

It is arguable whether, given the improved availability of respiratory protective equipment and reduced demand on healthcare, it is now appropriate for a revision of the guidance to be considered . This is a difficult decision and one which should be taken in the context of an increasingly vaccinated and protected workforce but with full knowledge both of the cost and time taken to “fit test” such respirators, maintain them and enforce that they are adequately worn.

The COVID-19 pandemic has caused difficult choices to be made on a myriad of issues not least PPE, RPE and upon the HSE on which “COVID transmission” cases it should or should not investigate.

The answer here we would suggest is not to resource the HSE sufficiently to allow it to investigate each and every one of over 20,000 RIDDOR reports but to ensure ,, that it is adequately resourced to actively investigate and prosecute workplaces which are not COVID-19 compliant and to focus on those clustered outbreaks we have seen up and down the country.

The HSE, evidenced by its’ own Annual Science Review (March 2021), has worked tirelessly during the pandemic with the UK Government and Public Health England to ensure workplaces and employees are best protected – recognising as it should, that safety indeed remains a relative concept.

Contact our expert occupational disease solicitors who can provide further specialist advice.

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