covid-19, coronavirus, questions, prosecution

Covid-19 & Prosecution of employers

Coronavirus has dominated the headlines and amongst all this some commentators have speculated that employers may be about to face prosecution if they don’t take all Covid-19 precautions possible to protect staff and third parties from infection.

Now it is correct to say that employers in the UK owe duties under the Health and Safety at Work etc. Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of employees. These duties extend to the provision of a safe working environment to those affected and not to expose third parties to risk.

It may be that the reality of these unprecedented times is, however, that enforcement of such legislation in this context is an unlikely outcome. Although one can never say never and indeed the HSE have said they will be carrying out inspections of certain workplaces. We will wait and see the outcome of these inspections and the course of action taken by the HSE.

The HSE is involved in trying to help co-ordinate the government’s response to the global pandemic.  COVID-19 cases are RIDDOR reportable in certain circumstances; these include release  of the virus, diagnosis attributed to occupation exposure to the virus or death as a result of occupation exposure to the virus. Certain individual cases are unlikely to be reportable and as such would not fall for investigation; and it would be near impossible to prove that an individual contracted Covid-19 from exposure at their place of work.

Perhaps the regulatory framework should be seen as an enabler to assisting duty holders with the tools to ‘do the right thing’.  You could say that the burden is on the business to behave ethically and appropriately. This is preferable to taking measures driven by fear or fail to do anything out of misguided complacency. This is about looking after people and potential regulatory sanction should not be used as a driver to achieve outcomes.

The modern-day health and safety professional is used to dealing with foreseeable risk as a function of the job. Just as measures are taken to prevent contaminants from spreading, risk assessments should consider mitigation measures such as hand gel, remote working and reducing or eliminating non-essential travel.

Government guidance is changing swiftly. You must closely monitor the situation to stay current with any measures necessary and act accordingly. Remember the Management of Health and Safety at Work Regulations 1999 tells us:

‘Any assessment shall be reviewed by the employer if:

(a)  there is reason to suspect that it is no longer valid

(b)  there has been a significant change in the matters to which it relates; and whereas a result of any such review changes to an assessment are required, the employer or self-employed person concerned shall make them’

Some employers are asking all visitors to self-declare any exposure to affected persons or any recent visit to severely affected nations. Such measures have limited legal value but may serve as a challenge to all visitors to think about their personal situation and so have some ‘minimal’ benefit.

The law does require some groups to have specific risk assessments: young persons and pregnant women are specifically safeguarded. Sensible risk management means that individual risk assessments should be carried out for those who have a self-declared health condition which could increase their risk profile. Home working may be recommended in some circumstances for such staff.

In the face of the pandemic, employers are taking the opportunity to remind staff and contractors to tell them about any specific individual medical advice which could affect the assessment. Duty holders should use this information to review their risk assessment and if necessary, to adjust working conditions accordingly.

The message then is simple:

act responsibly and ethically, not out of fear of prosecution but out of an appropriate sense of accountability to staff and customer stakeholders. Stay current and do all that is reasonably practicable based on government advice and an ever-changing situation.


Article was correct at time of writing, May 2020

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