Employer’s Duty to Provide a COVID 19 Secure Workplace
Many businesses are planning a return to work following the latest Government announcements.
This article will provide a brief overview of the steps to be considered by the employer.
Put simply, the duty at common law is to take reasonable steps to provide a reasonably safe place and system of work to protect employees as far as is reasonably practicable from all reasonably foreseeable harm.
The overall test is the conduct of the reasonable and prudent employer in taking positive steps for the safety of the workforce in light of:
- What he knows
- What he OUGHT TO KNOW
If in fact, the employer has greater than average knowledge then he may be obliged to take more than average or standard precautions.
He must weigh up all the risks with regard to the likelihood of injury occurring and the potential consequences thereof and balance these against the probable effectiveness of precautions to be taken, the costs of taking the precautions and the inconvenience.
Notwithstanding the reference to reasonableness, the duties on the employer are onerous and not to be taken lightly. For example, the duty to provide a safe working environment includes not just the physical state and layout of the premises but also the machinery and tools provided, the conduct of employees, the level of training, instruction and supervision together with the provision of adequate and appropriate PPE.
It is also important to remember the employer owes a duty to visitors to his premises, agency workers and self-employed contractors.
Notwithstanding the Enterprise and Regulatory Reform Act 2013 which removed the direct right of civil action for breach of health and safety legislation, close regard must be paid to such legislation in addition to the employer’s duties at common law and those arising from his occupation of premises. It is well established by the courts that in assessing the employer’s performance of his common law duty of care, great attention will be paid to the knowledge and experience created around the statutory framework.
If we have to choose the primary statutory duty, it must be that to assess the risks for both employees and non-employees:
“a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees”
In the current situation, each business preparing a return to work must carry out a full risk assessment of its entire operation to provide a COVID 19 secure environment. We recommend this is properly documented to provide evidence of the thought processes followed in case something goes wrong further down the line. It is well-established case law in the supreme court that the most logical way to approach any question relating to the adequacy of precautions taken is to look at the suitability and sufficiency of the risk assessment.
It is clear that inadequate health and safety provision will heighten the risk of transmission of the virus; and new working practices will increase the chance of accident and injury particularly where machinery or dangerous work is involved. We anticipate an increase in claims against employers as a result.
As businesses return to work, close involvement of the HSE will follow and spot checks of places of work are planned. Workers are encouraged to whistle blow on unsafe premises and practices.
If you require further information or wish to raise specific questions relating to risk assessment in your business, please contact Lesley White on Lesley.firstname.lastname@example.org