“COVID Secure” – The New Dawn of Regulatory Enforcement
The desire to return to a degree of normality and ease out of lockdown appears to have been replaced now with a wider public fear of doing so. So effective has been the messaging as to the risk that Covid-19 poses that many are genuinely scared of leaving isolation and returning to a workplace where they know, employers know, and the authorities know, that safety cannot be guaranteed. As we said in our previous article[1], the big challenge going forward is to reassure both employers and employees that the risk to human safety is reduced, whether by screening, surveillance, respiratory protection or common sense distancing measures, to a level that is broadly tolerable when set against the appalling consequence of the economy grinding to a halt. That challenge is not overcome, in our view, by simply having recourse to existing workplace health and safety legislation, or by resorting to a standard approach to the regulatory enforcement of those laws.
The current emergency does require all of us to become less partisan and more pragmatic, to look to find constructive ways forward rather simply criticising from the touchlines. Whilst there are no doubt many flaws to be found in the current raft of social distancing guidance provided by the Government to specific sectors of the economy[2], it represents a genuine attempt to tread this minefield that lies between economically ruinous exclusion from the workplace and a post vaccine world of normality and safety.
Summary of the 5 Main Principles of the Guidance
- Work from home, if possible
This ‘lockdown’ advice remains.
- Consult with workers on Covid-19 risk assessments
The advice to engage with the work force is designed as part of a planning process to enable a suitable and sufficient risk assessment to be prepared. The risk assessment should be on all employers’ web sites and if the work force is over 50 employees it is expected that it will be placed on a web site.
- Reinforcing cleaning processes
Cleaning should occur more frequently and high-contact objects like door handles, keyboards and lift buttons should be given particular attention. Handwashing facilities should be provided
- Maintain two metres’ social distancing ‘where possible’
This might include staggered starting times, signage, one-way systems, revised seating layouts, re consideration of exit and entrance routes
- Manage transmission risk
If the 2m rule cannot be kept, barriers should be introduced and shift patterns revised to minimise interpersonal contact and keep work time as short as is reasonable.
Our concern and, we suspect, most employers’ concern, is not as to the sense or science underlying these guidelines, it is as to the way in which they will be used and enforced going forwards. As most health and safety lawyers would warn, this ‘guidance’ is far more prescriptive in its effect than its title suggests. It sits within a regulated environment in which the ordinary burden of proof that a defendant in a criminal court would face is reversed, requiring employers to prove their innocence. This would require any employer to prove compliance with or justify any departure from the guidance which, in turn, would be treated by the courts as the benchmark of that which is reasonably practicable. The justification for that reversal of the burden of proof has always been that it is “not unfair to ask the duty holder who has either created or is in control of the risk to show that it was not reasonably practicable for him to have done more than he did to prevent or avoid it.”[3] However, here, the employer has not created nor is in control of a virus that has been and is continuing to be spread within the wider community. Is it, therefore, appropriate to treat this as just another workplace hazard?
The Approach of the HSE
The recent statements given by Sarah Albon (Chief Executive of the HSE) at both a Downing Street briefing[4] and in her evidence to the Select Committee for Work and Pensions are informative in this regard. On the one hand, it seems the HSE are entirely satisfied that the current legislation is up to the task of dealing (for the first time) with the spread of a community-acquired virus in the workplace, including even such industry-specific regulations as the Construction Design and Management Regulations (CDM) Regulations 2015. On the other hand, there seems to be a measured approach towards the enforcement of that legislation, with verbal and written advice to take precedence, and the ultimate sanction of prosecution through the criminal courts being suggested to arise only after an enforcement notice has already been issued and then contravened. Ms Albon stated in the briefing she gave:
“Inspectors can require businesses to do certain things – enforcement notices, requiring them to take particular kinds of action. In the most extreme circumstances if there is a risk of serious injury to an individual employee they can issue a notice which prohibits certain activities from taking place. Breach of those kind of enforcement notices is essentially a criminal offence and we can prosecute people who fail to do the right thing.”
This suggests an approach that we would entirely endorse in the current circumstances, namely one in which employers are effectively given a reasonable chance to put matters right, having been formally brought to their attention by an enforcement notice, before being hauled through the criminal courts. Ms Albon’s expression of “doing the right thing” says it all. This is about encouraging employers to do the best they can to mitigate the transmission of a virus that will already be spreading in any event.
However, where fairness is reliant upon the discretion of those enforcing the law there is always a risk that this understandably measured enforcement approach may in due course yield to outside and political pressure. For example, pressure to demonstrate evidence of ‘bad’ businesses being closed down and of the employers, directors and managers being punished through the courts. There is evidence of this arising already within the Select Committee (ante) in which most members seemed to be judging the success of the HSE’s approach not by the number of businesses positively responding to the guidance that has been in place during lockdown, but by how many businesses they have “closed down” or are considering prosecuting. Additionally, there are three areas where it appears the system is already susceptible to a more robust and perhaps disproportionate approach so far as employers are concerned.
“COVID Secure”
Firstly, there is the issue of language and rhetoric. It is, in our view, entirely unfair and unrealistic, to talk of employers being tasked with “minimising” the risk of the virus, of making the workplace “safe”, or, even more unrealistically, of making workplaces “COVID secure” (a term that features as part of the current HSE and Governmental guidance). It is unhelpful to have such rhetoric deployed in relation to a disease of which insufficient is known in order to use such terminology. It is particularly inapt in the context of potential enforcement activity because it implies that a workplace can be made “safe” (and absolutely so) from a pandemic if foreseeable steps are taken. That is not going to happen unless and until sophisticated screening and surveillance of the disease becomes freely available. All an employer can do is that which is reasonable in the circumstances to address an infection whose source is outside of the workplace. From the point at which those employees do return, then they bring with them an inevitable risk that one or more will be invisibly harbouring the virus and disease.
We are not yet at the stage whereby we are even capable of “securing” premises and people against transmission of an airborne virus, it is instead all about managing risk, balancing all of the competing factors to arrive at such a level of risk that is tolerable, even if it could not be described as acceptable to all. There has been an increasing recognition amongst the courts, culminating in the Supreme Court’s decision in the case of Baker v. Quantum Clothing Group Ltd [5] that safety is not to be treated as an absolute concept, judged by hindsight, but a relative one that is qualified by what is considered to be reasonable at the time. Lord Mance JSC in this regard cited the words of Lord Hobhouse in an earlier safety case:
“to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrow hawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative.”[6]
The current language being used to explain employers’ responsibilities seems to ignore such matters and hold them accountable for the spread of the virus itself, at least during working hours.
Clusters of Covid-19 Cases and Prosecution
Secondly, how realistic is it, going forwards, to presume that employers will be provided with a second chance to put things right before a criminal prosecution is contemplated? The HSE approach to employers’ reporting obligations under RIDDOR, which we noted in our last article, seems to be predicated on the employer being in a position to work backwards and assess whether the spread of Covid-19 amongst employees relates to occupational exposure or not. That being so, is there not a clear prospect that if an employer does encounter a cluster of cases, the regulatory authorities will similarly work backwards to form the view that this gives rise to a presumption that social distancing measures cannot have been properly followed?
HSE Guidance as to self-reporting Covid-19 under RIDDOR
“You must only make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) when:
an unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence.
- a worker has been diagnosed as having COVID 19 and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
- a worker dies as a result of occupational exposure to coronavirus.”
Under this guidance would a cluster of cases in a single workplace represent such “reasonable evidence” that transmission had been spread within that workplace. Is that occupational exposure? The larger the number of cases and their proximity in terms of time and location could answer that question, at least on the balance of probabilities. If spread of Covid-19 within the workplace is to represent occupational exposure then it sets a precedent that an employer with many such cases is likely to be viewed as having failed to meet the guidance, and should be prosecuted, irrespective of whether they had any prior warning from a regulator.
In a recent example, nine workers in a food factory that had remained open during lockdown developed coronavirus and, of those, seven required hospital treatment. Three workers died. The factory employs over 1,200 employees. As designated key workers the employees were maintaining supplies to retailers at a time of crisis. The employer had sought to implement social distancing measures and PPE in line with PHE and WHO guidelines. Additional cleaning and hygiene measure were understood to be in place. The HSE are believed to be in the case of investigating. Such clusters are likely to arise, amongst good employers doing their best as they are amongst bad employers that pay little attention to social distancing. Where they do, however, there is bound to be a clamour to take action and to punish.
Applicability of Health and Safety Workplace Legislation
Thirdly, we return to the adoption of traditional legislation and workplace risk assessment in order to control a disease that is prevalent within the community. This is not an occupational disease, one caused by the work activity or the environment, it is a disease that hides within that environment just as easily as it does outside of it. In an extreme example the absence of a risk assessment and work measures based on the 5 principles approach may suggest a risk of harm in the workplace, but in reality is that risk any greater than that faced by an employee taking public transport to travel to that workplace? In the renowned and controversial case of R. v. Porter [7] the Court of Appeal quashed the conviction of a headmaster for the tragic death of a child falling down steps in a school playground, in part on the basis that “the risk of injury was no different in the playground from what it inevitably and unavoidably was in any other place that the child might be”.[8] In R. v. Tangerine Confectionery Ltd & Veolia (UK) Ltd the Court of Appeal drew the distinction between workers required to work alongside a fast moving carriageway and employees simply being transported to work in a vehicle. The former represented a workplace risk for the employer to guard against, the latter involved “no material risk beyond the ordinary dangers of road use”. Is Covid-19 such an “everyday” and “incidental” risk in this new normal way of existence that we are living, a risk to which employees will be exposed in any event in simply travelling to work; or is the act of bringing them together sufficient in itself to convert it into a workplace risk, akin to locating workers alongside a dual carriageway? The answer is far from clear at present, at least as to how the HSE are viewing such matters, leaving employers exposed to potential criminal investigation and liability arising from the spread of the virus in their business.
The New Normal for Enforcement
Whilst the current statements from the HSE are relatively measured, businesses would be unwise to presume that they will only face criminal prosecution after an enforcement notice of some sort has been issued and breached, or that prohibition notices that may require the effective closure of operations will be directed solely towards the worst (and deliberate) offenders. The HSE in evidence to the select committee suggested such prohibition notices would rarely arise, and probably only in the healthcare setting, where an imminent risk of harm from continued operation of the activity would be evident. However, the power to issue a prohibition notice is based solely upon the opinion of a visiting inspector, and not as to whether there has even been a breach of the law, but simply as to whether the “activities”, if permitted to continue, will involve a risk of serious personal injury. If the HSE continue to construe existing health and safety legislation as covering social distancing requirements, it follows that HSE or local authority inspectors may well serve prohibition notices in cases outside of the healthcare sector where they form an opinion that social distancing is not being observed.
Conclusion
Only time will tell as to how robustly the current legislation is deployed to enforce the new social distancing guidance. However, we would suggest that in these entirely unusual circumstances, the use of the carrot rather than the stick is likely to be more effective and fairer means of promoting good practice within the workplace. The concept of a “safe workplace” in the world of coronavirus is illusory, and the regulatory authorities would be best served by recognising that going forward. The potential for harm is endemic and widespread, particularly in all enclosed spaces in which people are gathered. In such circumstances the use of enforcement is likely to be challengeable in anything other than the worst types of case.
Leaving to one side the legal difficulties in enforcing some of these measures, if the economy is to recover employers have to be satisfied that they will not become criminal suspects overnight by the mere fact of a cluster of Covid-19 cases at their workplace. Now is the time instead for visiting HSE inspectors to be giving out clear and practical advice, and, just as importantly, approving risk assessments and measures that appear to them to represent good practice. Particularly, as they will have the ability to see the terms of risk assessments that are now to be put on the company’s website. All too often in our experience the HSE have been wary to commit to giving approval to individual business’ risk assessments, saying that the assessment of risk must lie in the hands of the duty holder. That may be true and may be an important caveat for such a public organisation in a litigious society, but these are unprecedented times and this is an exceptional virus. Now is the time for the HSE and Government to go further than just issuing universal guidance, but to provide practical help to individual businesses to enable them to “do the right thing”, and to endorse good practice by confirmation that the business is “Covid compliant”, even if it is not Covid secure.
Written by Simon Antrobus KC & John Cooper KC. Download the PDF here.
[1] What are the Health and Safety Responsibilities of Employers for COVID-19?
[2] https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
[3] R. v. Davies (David Janway) [2002] EWCA Crim 2949; [2003] I.C.R. 586;
[4] Downing Street Press Conference 11th May 2020.
[5] [2011] 1 WLR 1003
[6] R (Junttan Oy) v. Bristol Magistrates’ Court [2003] ICR 1475 at para 103.
[7] [2008] EWCA Crim 1271; [2008] ICR 1259
[8] This was the way that the case was interpreted by the Court of Appeal in R. v. Tangerine Confectionery Ltd & Veolia (UK) Ltd [2011] EWCA Crim 2015.
