Q: The Chief Executive has asked whether or not we could be prosecuted if employees come to harm due to Covid-19. Can we be prosecuted?
A: This is not an easy question to answer as the UK moves into a “new normal” working environment where Covid-19 is seen as a new health hazard to be managed.
Under the Health and Safety at Work, etc Act 1974, employers have a duty of care to protect the health, safety and welfare of employees (s.2) and others who may be affected by their undertakings (s.3).
The UK health and safety regime is based upon employers doing what is “reasonably practicable” to reduce risks to as low as reasonably practicable. As such, employers should be determining what they must do to eliminate or reduce the risks of Covid-19.
This can be achieved by referring to the Government’s guidance on working safely during Covid-19.
Although not an official Approved Code of Practice, this guidance can be used as a benchmark for doing what is reasonably practicable. Other guidance, eg from specialist trade or membership associations, can also be used to establish best practice.
It is worth noting that the Government guidance states that, where enforcing authorities identify employers who are not taking action to comply with the relevant public health legislation and guidance to control coronavirus risks, “they will consider taking a range of actions to improve control of workplace risks”.
Whether this would result in any prosecutions is subject to considerable conjecture at the present time.
In terms of prosecution if an employee comes to harm, an indication of the approach being taken can be seen in requirements for reporting under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR).
In summary, reports are only required where an accident or incident at work has, or could have, led to the release or escape of coronavirus (eg in a laboratory) and where a person at work has been diagnosed as having Covid-19 attributed to an occupational exposure to coronavirus.
This suggests that there must be a strong connection between the work activity and exposure to the virus (ie where it is known the virus is likely to be present).
Whether such incidents will lead to prosecution is also a matter of conjecture. However, the risk of prosecution will be greatly reduced if the organisation can show that it has done its risk assessments, implemented control measures in line with the guidance, and has considered what is reasonably practicable to keep employees and others safe.
Last reviewed [by Croner-i] 19 June 2020
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