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Returning to work and COVID-19: Could employers face health and safety prosecutions for infections in the workplace?
Sophie Wood
The Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Alok Sharma, announced this week that non-essential shops will be allowed to open from 15 June. Mr Sharma also stated that if shops do not follow COVID-secure guidelines they could be subject to enforcement notices. What does this mean?
Obligations placed on shop owners
Section 3 of the Health and Safety at Work etc Act 1974 (“HSWA 1974”) places positive obligations on employers and the self-employed to ensure, so far as is reasonably practicable, that non-employees (i.e. members of the public) who may be affected (i.e. members of the public who walk into a shop) are not exposed to health or safety risks. This sits alongside the obligations under s.2 HSWA 1974, which, as set out in our previous blog, require employers to ensure the health and safety of their employees is properly managed. With shops opening, store owners will need to consider their obligations under both sections; a failure to do either or both is a criminal offence.
Guidance on how BEIS consider you can do this in the context of the on-going COVID-19 pandemic is here. At sections 4 and 5 it explains how shop owners can minimise the contact risk from individuals visiting their stores through practical measures and information provided. This includes:
- Providing clear guidance on social distancing and hygiene for people on arrival – through signage and visual aids;
- Defining and limiting the number of customers able to enter the store, to ensure 2m distancing rule is maintained (for example by implementing a queuing system). Shops should assess how customers walk around the shop to address how best to reduce congestion;
- Encouraging the use of hand sanitisers or hand washing facilities as people enter the premises to reduce the risk of transmission;
- Encouraging customers, if at all possible, to avoid handling products (fitting rooms should be closed wherever possible);
- Ensuring there is sufficient ventilation and frequent cleaning;
- Storing returned items for a period of 72 hours, or cleaning them before displaying on the shop floor.
At section 6 the guidance makes clear that the use of face masks is not a replacement for other ways of managing risk.
Enforcement notices
As explained in our previous blog, enforcement notices can be issued to a person or a business who a local authority or the HSE considers is or has breached health and safety legislation. These take the form of either an Improvement Notice, which requires health and safety contraventions to be remedied within a specified time; or a Prohibition Notice, which requires the cessation of an activity (which may in effect mean the temporary closure of a business) due to the risk to safety said to arise from that activity. Whilst these notices are civil in nature, a failure to comply with the notice is a criminal offence (s.33(1)(g) HSWA 1974). It is therefore important a business addresses and continuously reviews what it can reasonably do to prevent exposure to health or safety risks.
If you think you have managed the risk and have been improperly issued an enforcement notice, you can challenge it. This may be an important tool for businesses in the current climate and constant evolving scientific advice.
Prosecutions
There are a number of reasons why the HSE or local authorities will be unable or dissuaded from instituting a prosecution for a COVID-19 health and safety risk (see our previous blog). Nonetheless, the best way to protect you and your business is to address the risks now, implement risk-reducing measures and have in place a record which demonstrates your procedures. Keep this under review and adjust it in line with updated scientific advice.
Further information
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
About the authors
Jonathan Grimes is a Partner in the criminal litigation team who specialises in serious and complex criminal cases. He represents individuals and organisations in all areas of financial services and business crime as well as health and safety and related areas. He leads the firm’s cross practice Health Safety and Environment Group. He has acted in numerous cases involving allegations of financial wrongdoing and has experience of investigations by HSE, SFO, FCA, HMRC, CMA, NCA and the police as well as a number of foreign investigative authorities.
Sophie Wood is a senior associate with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations and public inquiries. Sophie has acted for individuals involved in investigations brought by the HSE and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.
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