Covid-19 has caused many things a deluge of concerns, rules, guidance, information, action plans. All this has raised some recurring questions:
- What are our health and safety criminal law obligations in dealing with the coronavirus?
- What do we have to do?
- How can we protect ourselves from blame if we get it wrong?
As we are all finding out there are many difficult decisions relating to the handling COVID-19. These range from the generic across all organisations but others will be specific to you depending on the factors that relate to your business such as workforce, working practices and geography.
Following publicly available guidance is fine for generic decisions however you will probably need to develop and tailor plans to your organisation and people. Factors such attendance at the work site, travel requirements, measures within the workplace, proximity of people, etc. will all need to be considered and addressed.
The criminal law obligations…
Now we are not saying that criminal prosecution will inevitably result should your organisation be hit by a Covid-19 outbreak but you must bear in mind the health and safety obligations is imperative.
Whilst figuring out your action plan don’t lose track of the basic Health and Safety at Work Act 1974 duty to do everything that is “reasonably practicable” to safeguard your employees and those affected by your operations. Further there are specific duties under the Management of Health and Safety at Work Regulations 1999 to conduct suitable and sufficient risk assessments. This covers risks to employees who are at work and also risks to non-employees arising from your operations. The duties include making and giving effect to appropriate arrangements for planning, organisation, control, monitoring and review. Remember these arrangements need to be recorded in writing for employers with five or more staff.
Let’s not forget about the Personal Protective Equipment at Work Regulations 1992 and the requirement to provide suitable PPE. The requirements include that PPE must be appropriate for the risks and conditions involved. It must be capable of fitting correctly and assessed as suitable and effective, so far as is reasonably practicable, to prevent or adequately control the risk. Employees must be given adequate information, instruction and training regarding PPE, which must also be maintained, cleaned and replaced as appropriate. Last but by no means least, all reasonable steps must be taken to ensure that any PPE is properly used.
What you should do…
Following the principles should guide you through each difficult decision and remind you to evaluate and balance the risks against appropriate control measures. A good mantra should be ‘would it have been reasonably practicable to have done more’; if the answer is ‘yes’, then you are potentially exposed to criminal prosecution.
Personalise, so far as reasonably practicable, your procedures to specific workers and those affected by your operations. A good example would be: exposing a twenty-year-old employee to potential infection of Covid-19 will not be the same risk as for someone whose age or underlying health condition makes them more vulnerable.
You should start by following the relevant Government rules and guidance along with any revisions as the rules are relaxed or, indeed, tightened. Pay particular attention to sector specific information and risk assess carefully ensuring revisions, renewal or creation of assessments are completed as necessary.
Protection when it goes wrong…
As we have seen difficult decisions have to be made and are continually changing along with the pandemic. These decisions have potential life and death consequences if you get them wrong. This has to be delicately balanced against the disruption to business and commercial consequences of taking an approach that is too cautious.
At the forefront of all this is the general health and safety law principle: that if you can’t do an operation safely, you should not do it at all. That said, as a pandemic develops, this principle will be tested to the full. For example depending on your business (utilities, food, medicines, and healthcare) you may have to balance the safety of staff against the safety of the public.
In all cases it is invaluable to point to the documentation showing you have thoroughly considered the issues and sought to balance them. Such documentation should record that you have taken into account factors on both sides before reaching a difficult decision that you will keep under review. The argument is that if you have conducted a balancing exercise and sought to achieve what is reasonably practicable, it will be harder to blame you in criminal law; even where hindsight would suggest otherwise.
Remember that specialist health and safety legal advice can help you through the exercise. The added bonus of such assistance is that any such documentation could be protected from disclosure by the principle of legal privilege.
Our message is clear. Develop your plans and assessments, paying particular consideration the demographics and vulnerabilities of your staff and those impacted by your operations. Monitor, review and give proper consideration to the changing nature of the pandemic and your control measures.
You may think ‘of course’ but it could just make the difference; we would therefore also suggest taking specialist health and safety legal advice to help you with the most difficult issues. We would aim to help you make the right decision and seek to protect you and your directors from blame if you get it wrong.
Article was correct at time of writing, May 2020