Legal claims: if employers’ do not get safety at work right!
Introduction
The government has provided its 50 page guideline to assist employers and employees in terms of easing the lockdown and beginning to encourage people to return to work when necessary. Further, specific guidance is to be issued today.
Employees can look at s44 of the Employment Rights Act 1996 to learn about when they can withdraw their labour because they do not feel safe in the workplace. S44 enables an employee to refuse to work in an unsafe environment. This article is not about that today.
In this article, we are making assumptions, things have gone wrong. Employees contracted Covid 19 in your workplace and they can prove it! Some staff have managed to survive and others have died.
We will therefore simply look at the potential liabilities of an employers.
1. Health and safety
The Health and Safety executive may pursue a criminal claim against you as an employer if you are in breach of your duty to look after the health and safety of your employees.
Employees have a duty to look after themselves at work, but as an employer, you are responsible to ensue that you do as much as possible to ensure that they are safe. In the current climate it is thus important to look at what WHO is saying about Covid 19 as well as the national government, I would also get a health and safety executive (independent consultant) to help.
You, as the employer will have employment liability insurance. Insurers want you to avoid risk , so not only look at WHO and any government guidelines. Speak also to your insurers who may have their own guidance.
Not only are you at risk of criminal liability if you get things wrong, there is also the civil liability.
2. Civil Claims
2.1 Negligence
This is the most obvious potential claim. You owe a duty of care; you are in breach of that duty as an employer. Your employee has suffered loss and damage as a result of your negligence. Your failure to deal with the pandemic in your workplace properly, accordingly your employees have caught the illness at work and can prove it. Under these circumstances, your failure to protect your employees from Covid 19, will make you liable. Due to the fact that this illness is so contagious, more than one member of staff ill, will increase your liability.
2.2 Employment law
Under the employment law, employees may use s44 and refuse to return to work. They can issue a claim for breach of the health and safety regulations using s100 of the Employment Rights Act 1996. It is automatic unfair dismissal, if a member of staff brings a health and safety claim against an employer.
There are other potential employment law claims, constructive unfair dismissal, because of breach of the implied term of mutual trust and confidence if you have not dealt with Covid 19 properly. Employees also concerned about poor prevention policies, may be forced to whistle blow to the relevant authority, such as the health and safety executive. Thus you are at risk of an expensive whistleblowing claim.
3. Occupiers liability
This old piece of legislation may be dusted down and used because it imposes liability when individuals ( cleaners, postman, visitors) are harmed because they have entered your premises and contracted Covid 19.
4. Personal Injury
Personal injury claim may be pursued because an employee became ill at work and died. Some lawyers will be happy to deal with such a claim on the basis of a ‘no win, no fee’.
Conclusion
From the above, it is clear that you must take the health and safety of employees and any visitors seriously. This would involve:
1. Reading any WHO and government guidelines
2. Talking to your insurers as they may have already considered what can be done to reduce risk. Similarly, some professional bodies may be providing members with additional guidance.
3. Ensuring you carry out a risk assessment.
4. Ensure you carry out a risk assessment (this not a typo, it is here again for you to take it very seriously!).
5. Do all that is necessary to mitigate any risk you have established as a result of your risk assessment and thus reduce liability.
6. Review frequently and often in the current climate. Once a week, may not be so bad until your happy with your own attempts to stay safe.
Useful government guidance.
Link to the government Covid-19 strategy below
The Governementd UK’s Covid 19 recovery strategy, can be found here
We are always here to help with any employment law problems you may have. You can contact us here.