COVID-19 EXPERT LEGAL INSIGHTS

Returning to work and COVID-19: Could employers face health and safety prosecutions for infections in the workplace?

5 June 2020

As we move through the phased easing of lockdown, employers and employees will be anxious to ensure that the return to the workplace does not exacerbate the risk of infection. Businesses do not want to find themselves falling foul of the law, and with news last month that the Health and Safety Executive (“HSE” – the body responsible for regulating and enforcing health and safety legislation) has been bolstered with £14m extra funding, it is more important than ever to manage the risks.
 

In the expandable sections below, we consider the basic elements of health and safety offences and what an organisation can do to minimise the risks of facing a prosecution or other enforcement action relating to COVID-19 infection.

COVID-19 AND THE LAW – WHAT DO BUSINESSES NEED TO KNOW?

Health and safety legislation places positive duties and obligations on organisations to protect the wellbeing of both their own workers and the general public. Section 33 of the Health and Safety at Work etc Act 1974 (“HSWA 1974” / “the Act”) makes it a criminal offence to breach the obligations contained within the Act.

Both the HSE and local authorities are responsible for enforcing health and safety legislation; the HSE managing the ‘higher risk’ businesses, local authorities managing the ‘lower risk’ businesses. This will generally mean that most shops and offices will fall within the remit of the local authority, whilst the HSE will manage larger businesses such as laboratories, manufacturing establishments and offshore oil and refineries. Each work place will be able to tell employees who the enforcing body for their business is.

Under s.2 and s.3 HSWA 1974 an employer must ensure, so far as is reasonably practicable, the health and safety of their employees and those who are affected by the business’s operations – which includes members of the public. Proof of harm is not necessary for an offence to be committed; the legislation is concerned with risk and how the organisation manages this. The extent of any injury and harm are instead taken into account at sentencing.

 

WHO IS LIABLE TO BE PROSECUTED FOR A COVID-19 RELATED BREACH OF THE LAW?

Employers (under s.2 HSWA 1974), the self-employed (under s.3 HSWA 1974), owners of premises used as a workplace (under s.4 HSWA 1974), individual employees (under s.7 HSWA 1974) and anyone who causes another to breach safety legislation due to their act or default (s.36 HSWA 1974) are all potentially criminally liable.

A company, as a legal ‘person’, can also be prosecuted – and indeed much health and safety enforcement is focussed on organisations rather than individuals. If the company is guilty of an offence, individual directors, managers or similar officers of the body corporate, may be liable if the offence is shown to have been committed with their consent or connivance, or was attributable to any neglect on their part (s.37 HSWA 1974). If a director is convicted by virtue of s.37 HSWA 1974, they may be sentenced as if they had committed the substantive offence. Offences under HSWA 1974 carry sentences of up to two years. Those convicted may also be disqualified from acting as a director for up to 15 years (s.2 Company Directors Disqualification Act 1986).

 

If you fail to meet the health and safety requirements, will your business be prosecuted?

Not necessarily. For a prosecution to be brought it must first meet the two tests set out in the Code for Crown Prosecutors:

  1. There must be sufficient evidence to provide a realistic prospect of a conviction (the evidential test);

and (and only if the evidential test is met)

  1. A prosecution is in the public interest (the public interest test).

Given the numerous pathways to infection and the range of advice to businesses seeking to manage COVID-19 infection, it is likely to be difficult to identify sufficient evidence that an individual or organisation has failed adequately to address this risk. That said, a failure to take any of the steps recommended to address the risk or to conduct any risk assessment could be sufficient evidence to justify a prosecution.

Even if the evidential test is met, the public interest test may not be. As set out in the HSE’s own Enforcement Management Model (the approach enforcement authorities should follow), it makes clear (at paragraphs 105-108) that prosecuting offences may not always be the correct decision, often reserved for the most serious of cases:

There are competing demands on the finite resources available to HSE, and a balance has to be achieved based upon risk, potential outcomes and public expectations. When considering public interest, inspectors are looking to satisfy themselves that the proposed action will produce a net benefit to the wider community in terms of reducing risks, targeting public resources on the most serious risks and the costs of pursuing a particular course of action” (paragraph 106).

The document goes on to provide a detailed list of factors which may influence the final outcome.

This provides important scope for representations to be made to investigators, prior to any charging decision, on alternative non-prosecution avenues. Formal cautions (which again provide an alternative to a prosecution, though carry with it a criminal record) are also available to enforcement bodies. If a prosecution is brought, evidence of effective health and safety processes, even if they fell short on a particular issue, and/or appropriate and timely reporting, can be advanced as mitigation in the point of sentencing.

On conviction, an organisation faces up to an unlimited fine for a breach of s.2 or s.3 HSWA 1974 (see sentencing guidelines here). An individual, if prosecuted, faces up to two years’ imprisonment (sentencing guidelines here).

 

What enforcement action could be used, other than a prosecution?

Where local authorities and HSE enforcement bodies have evidence of a contravention of health and safety legislation, a prosecution is not the only route available to them. They have the power to issue advice or an enforcement notice (‘improvement’ under s.21 HSWA or ‘prohibition’ under ss.22-23 HSWA (information here)). If a notice is served, the recipient can appeal.

It seems apparent, from the comments made by Sarah Albon, HSE Chief Executive, at the Work and Pensions Committee meeting of 12 May (here) and Press Briefing of the same day, that improvement notices (for now) may well be the first port of call in respect of COVID-19 issues. These apply where an inspector is of the opinion that a business is contravening health and safety obligations, or has contravened and is likely to continue / repeat that contravention, and requires the business to remedy the contravention. The period given to a business to improve its practices should be no less than 21 days.

Where an inspector is of the opinion that the business and its activities, if it was to carry on, would involve a risk of serious personal injury, they are empowered to issue a prohibition notice, which requires a business to close. The HSE, in their evidence to the Select Committee on 12 May, suggested that such measures had not been necessary given the proactive steps taken by businesses to improve their activities when concerns were raised. Where such businesses were unable to take the necessary steps, they opted instead to voluntarily close their operations. This does not mean however that the threshold for a prohibition notice will never be met within a COVID-19 scenario and may be likely to increase as businesses reopen over the next weeks and months. Equally, as their website shows (here), the HSE is not shy in deciding to issue prohibition notices. Therefore to avoid a forced closure, businesses should and must take seriously the need to implement adequate measures and follow up on advice or improvement measures required by the HSE.

Businesses should note that even where a prosecution is not pursued, if the HSE find that there is or has been a material breach of the law a ‘fee for intervention’ (FFI) will be imposed. This fee covers the time it takes the HSE to identify and assist in rectifying those breaches. The hourly rate is £157 and more information can be found here.

 

IS IT POSSIBLE FOR A BUSINESS TO MANAGE THESE RISKS IN THE CONTEXT OF COVID-19?

Yes. Importantly, the legislation does not require businesses to eliminate the risk, but rather they must, in order to protect people from harm, have in place sufficient systems and processes to manage it. Where all reasonably practicable steps are taken, an offence will not be committed. This analysis will be viewed within the context and information known to the business at the time it is operating, which is all the more important at the moment where the ability to monitor the virus through testing and tracing is only in its infancy, and given the range of views as to how best to address the risk of COVID-19 transmission.

The HSE and the Department for Business, Energy & Industrial Strategy have both provided guidance (here and here) on working safely during the coronavirus outbreak. Specific guidance is provided in respect of each different industry. As set out in the ‘COVID-secure notice’ (here), which companies can display to show that they have considered and applied government advice, a company should:

  1. Carry out a COVID-19 risk assessment in line with HSE guidance (here) – employers should engage with their work force and, if the business has over 50 employees, the risk assessment should be placed on the website
  2. Develop cleaning, hand washing and hygiene procedures – the frequency of the cleaning and high-contact areas should be an area of focus
  3. Take all reasonable steps to help people work from home
  4. Maintain 2 metre social distancing where possible – this could involve implementing a one-way system and staggering start times             
  5. Where 2 metre distancing is not possible, do everything practically possible to manage the transmission risk

If an incident occurs, companies should consider reporting it to the HSE under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013). As set out here, cases that will need to be reported under RIDDOR includes circumstances where:

  1. “an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence”
  2. “a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease”; or
  3. “a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent” (emphasis added).

The guidance explains that for a ‘dangerous occurrence’ to take place (1. above), the assessment as to whether the incident must or could have resulted in the release or escape of coronavirus “…does not require any complex analysis measurement or test, but rather for a reasonable judgement to be made as to whether the circumstances gave rise to a real risk or had the potential to cause significant harm”. This seemingly broad remit is curtailed by further guidance (here) which provides some examples of where it will and will not apply: for example, if a police officer was deliberately coughed at or spat on by a person of unknown COVID-19 status, a RIDDOR report will not be necessary. It will however if a laboratory worker accidentally smashes a vile containing coronavirus on the floor which leads people to be exposed.

In respect of cases of disease (2. above), there needs to be reasonable evidence that occupational exposure was the likely cause of the disease (which can be confirmed by a laboratory test alone, without a medical practitioner’s written diagnosis) rather than general societal exposure. Therefore, if a job requires a person to work with the general public (who may or may not be infected) this will not be considered sufficient to meet the evidential threshold in demonstrating a COVID-19 diagnosis is likely to be attributable to occupational exposure – and therefore would not be reportable. Some non-exhaustive factors set out in the guidance (here) to be addressed when assessing the reasonable evidence test are (emphasis added):

  • Did the nature of the work activities increase the risk of that person becoming exposed?
  • Was there a specific, identifiable incident, which led to the increased exposure risk?
  • Did the individual’s work cause them to come in direct contact with known coronavirus hazards without effective control measures (e.g. PPE or social distancing)?

For a work related death (3. above) there must be reasonable evidence that the death was caused by occupational exposure to coronavirus. In deciding whether a RIDDOR report is necessary in such circumstances, the same factors outlined at 2. above will need to be considered and the death certificate will also form an important part of the assessment.

 

What next?

First, before opening their doors, businesses should conduct and document a risk assessment and carefully scrutinise their pre-existing processes and procedures to assess and implement the measures, where possible, recommended in government guidance. In the assessment as to whether a business is doing everything reasonably practicable to extinguish or reduce risk it should not be forgotten that the government advice remains that where a person can work from home, they should; measures to reduce human contact, including keeping some or all staff at home should be considered by all businesses for which this is possible. Second, where businesses do reopen it is essential that measures assessed as being necessary to address the risk of COVID-19 infection are maintained and enforced: too often health and safety measures remain in the office manual instead of being inculcated into the practices and culture of the business. Evidence of a business’s proactive assessment and management of health and safety risks will both protect their employees from harm, but also protect the business from enforcement action in the future.

Christopher Boughton, Trainee Solicitor, Criminal Litigation co-authored this article.

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.

Christopher Boughton is a Trainee Solicitor. He is currently in his fourth seat in the Criminal Litigation team.

 

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