Your duty to report COVID-19 cases to the Health and Safety Executive or the Coroner

A great deal of media attention in recent weeks has focussed upon the deaths of front line workers in health and social care settings, amid strengthening allegations that they have not been provided with sufficient suitable personal protective equipment (“PPE”). Elsewhere, concerns have been raised about the risks faced by workers in other environments and sectors. These include those working in the other emergency services, in public transport settings, as undertakers and even security guards at Court who have contracted COVID-19 after coming into contact with the public whilst working without the benefit of any PPE. 

The Health and Safety Executive (“HSE”) has now issued helpful guidance specifically relating to the circumstances in which COVID-19 cases fail to be reported under the existing regime set out in the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”).

The Reporting Regime

RIDDOR requires “responsible persons”, most obviously employers, to report instances of serious injury (or death), occupational disease and dangerous occurrences arising out of, or in connection with, work. The principal duty is to notify the relevant Enforcing Authority of the reportable incident “by the quickest practicable means without delay” and to send a formal report in the approved manner within ten days. There is an additional duty to maintain a suitable record of relevant matters.

Subject to the defence in Regulation 16 of RIDDOR (to the effect that the responsible person was not aware of the circumstances which gave rise to the requirement to report, despite having taken all reasonable steps) it is an offence to fail to comply with these duties. On conviction, the offence is punishable by an unlimited fine in the case of a corporate defendant, or a period of imprisonment (with or without a fine) in the case of an individual, for a failure to comply with the reporting requirement.

COVID-19 specific guidance

In relation to health and social care clients, HSE’s existing Guidance Note HSIS 1 already provides useful guidance for employers in those sectors about how to differentiate between matters that are reportable and those that are not. 

A responsible person is not required to report under RIDDOR an injury (fatal or otherwise) that arises from “…the conduct of any operation on, or any examination or other medical treatment of, [the injured person] (such operation being conducted by or under the supervision of a registered medical practitioner or a registered dentist)…”.  This means that cases involving errors in treatment are not generally RIDDOR reportable.

However, the recent specific guidance about reporting of COVID-19 cases makes it clear that there are circumstances in which COVID-19 cases may have to be reported — not just in the health and social care sectors, but more generally. There are three situations in which reporting is required:

• The release of Coronavirus (e.g. from the accidental smashing of a glass vial containing it) leading to people being exposed, would constitute a “dangerous occurrence”, thereby triggering the requirement to report under Regulation 7
• If there is “reasonable evidence” that somebody diagnosed with COVID-19 became infected as a result of exposure at work (e.g. a health care professional dealing with an infected patient), it would require to be reported as a case of exposure to a biological agent, under Regulation 9
• Where the death of a worker has been confirmed by a registered medical practitioner as being “likely” to be attributable to exposure to Coronavirus at work this must be reported under Regulation 6, as a work-related fatality.

It is important to note that even cases that have not resulted in a fatality need to be reported under the first two circumstances listed here.

Reporting to the Coroner’s Court and the implications of doing so

Where it is properly confirmed by an eligible registered medical practitioner that COVID-19 offers the probable cause of a person’s death there is ordinarily no need for the death to be reported to the Coroner, unless there is some other reason for reporting.

COVID-19 is a naturally occurring disease and may be treated as a natural cause of death for registration purposes, in the absence of other features, if it is the probable cause of death. Under the Notification of Death Regulations 2019, a “…death is typically considered to be unnatural if it has not resulted entirely from a naturally occurring disease process running its natural course, where nothing else is implicated.”

Cases of ostensibly natural deaths warrant coronial investigation in limited circumstances. One is when there is reason for the coroner to suspect that the ostensibly natural death might actually be unnatural, owing to there being evidence of some culpable human failure, but for which the death would have been avoided.

In COVID-19 cases it is anticipated that coroners will be invited to form the suspicion that the death was unnatural in cases where it might be argued, for example, that a failure by an employer to meet its obligations to provide employees with suitable PPE (or otherwise to protect them from exposure), or to protect members of the public from exposure which occurred due to the way in which they conducted their undertaking, led to an individual contracting Coronavirus when such an outcome would have been avoided but for the culpable shortcomings alleged.

COVID-19 is a notifiable disease under public health regulations. Ordinarily, an inquest heard into a death from a “…notifiable accident, poisoning or disease…” must be heard before a jury, under Section 7 (2) (c) of the Coroners and Justice Act 2009 (“the 2009 Act”). However, Section 30 (1) of the Coronavirus Act 2020 specifically provides that COVID-19 is not a notifiable disease for the purposes of Section 7 (2) (c) of the 2009 Act.

Plainly the intention here is that coroners will not be expected to sit with a jury in every case in which COVID-19 is involved simply because it is a notifiable disease for public health reporting purposes. However, where there has been a report to an enforcing authority under RIDDOR, for the purpose of allowing investigation into whether or not a responsible person may have committed an offence under health and safety law, it is thought that the Section 30 exemption would not apply, in which case a jury must be summoned if an inquest is to take place. For RIDDOR purposes it is not the existence of a notifiable disease that triggers the duty to report — rather, it is the work-related injury, dangerous occurrence or occupational exposure related to the biological agent that is pertinent.

Conclusion

Understandably there is growing, well-informed speculation that a Public Inquiry into many aspects of the nation’s response to the pandemic is likely, in which case (as happened in the Mid-Staffs case, and is expected in connection with Grenfell, for example) parallel activity by enforcing authorities might not lead to prosecutions until the Inquiry has been completed.

That might be where we are heading, but for the moment employers should not neglect their reporting obligations under existing measures. They should ensure that they understand the circumstances in which an individual contracting Coronavirus through work-related exposure should be reported to the relevant enforcing authority — and they should then undertake the reporting within the prescribed timeframe. 

Where there has already been a failure to comply with the duty to notify promptly, the earliest possible retrospective notification should be given. 

It is important to note that complying with the requirements of RIDDOR does not constitute the admission of any offence or breach of duty, but that failing to comply with RIDDOR requirements is an offence in its own right.

It is highly likely that issues around causation are likely to feature prominently and often contentiously in any substantive litigation (whether arising from a prosecution by an enforcing authority, or a civil claim, as well as in any inquest).

However, it is recommended that a low threshold is applied by employers to the causation issue when deciding whether or not to report under RIDDOR, even if substantive causation arguments are likely to be live in subsequent litigation. The RIDDOR report itself may adopt a neutral stance on causation in cases where it is not clear-cut, leaving the matter to be addressed on another day, when more information is to hand, but meanwhile avoiding the risk of criticism from a failure to report or to do so in good time.

If in doubt about whether a specific situation warrants RIDDOR reporting take early advice.