Covid 19 – Causation and defending claims against employers

CAUSATION

Employees seeking to bring a claim will have to prove it was their employer’s breach of duty (in failing to provide adequate PPE or carry out a proper risk assessment for example) which caused them to contract the virus.

They have only to prove the virus was contracted at their place of work due to the employer’s negligence on the balance of probabilities.  That is, they do not have to establish the precise cause of the infection.  Therefore although it may be a challenge for the employee given the prevalence of the virus and the ways in which it is transmitted, it is by no means impossible; and it is likely to become easier to establish as the widely reported tracing app is developed and becomes more readily available.

No doubt expert evidence will be required to establish the likelihood of the virus being contracted in the community or the workplace.

Relevant factors include:

• Timing – it will be easier to establish causation in cases where the virus was contracted prior to lock down and social distancing measures. These have been largely followed by the public and the rate of infection has fallen.
• The employee’s home life – do they live alone? If not, did any other household member contract the virus before the employee?
• Nature of the employee’s role and the extent to which it is likely they could have been exposed to the virus in the workplace.
• Evidence of testing – the employee must prove the employer’s breach caused the injury and therefore the more employees are tested for the virus (whether or not they are showing symptoms) the easier it is to establish causation since it will be possible to determine when the infection occurred. The employer might acknowledge initial lack of adequate PPE for example but argue that issue was remedied by the time the employee contracted the virus

It is important to remember that the duty on the employer is to take all reasonably practicable steps to ensure the employee is reasonably safe.  Even with a proper risk assessment and full PPE, COVID 19 may not be avoided completely.  If all proper steps have been taken by the employer, a court may find that although the employee was infected it was not due to a negligent cause.

DEFENDING CLAIMS

Wherever possible employers will wish to defend all claims alleging their failure to comply with their duties.

Each case will be fact specific, but the following are some suggested measures to be taken IN ADVANCE of claims to maximize the employer’s chances of defeating claims.  It is not intended to be exhaustive.

1. Gather and retain as much DOCUMENTARY evidence as possible to establish all reasonably practicable steps were taken to show an overall picture of a caring diligent employer trying hard to protect their workforce in unprecedented and difficult times. For example –

• What attempts were made to obtain PPE?
• If such attempts were unsuccessful, why? Was the only available PPE unsuitable for the tasks to be carried out by the workforce?  Did suppliers fail to deliver it on time or at all?  Was the advertised equipment prohibitively expensive?
• Evidence of testing of the equipment.
• Records of employee training and support in the use of PPE.
• Implement and document a system of sending employees home if they show any symptoms of the virus.

2. Gather evidence to show the challenges faced by the employer and their competing interests (including, but not exclusively, costs).
3. Focus on all measures taken to prevent infection (in conjunction with or in the place of any unavailable/unsuitable PPE). For example –

• Keeping all doors open where possible
• Providing additional and improved washing facilities
• Implementing additional cleaning of premises
• One-way systems
• Split shifts
• Closure of communal areas
• Distancing of employees if possible

4. Is there any contributory negligence on the part of the employee? Did they fail to wear the PPE at all times?  Did they fail to consistently follow their training?

It is important to be able to show the steps taken to remedy any failure on the part of the employee for example additional training, disciplinary measures and even termination of employment.

For further information please contact Lesley White at Lesley.white@orj.co.uk