As an employer you have a legal duty to care for the health and safety of your employees. Your employers liability policy provides protection against your legal liability to your employees, including property damage and bodily injury. Bodily injury includes illness, including illness resulting in death and this could potentially involve legal liability incurred from Covid-19. However, this would be dependant on the employee proving that you had breached your duty of care.
Potential claims could come in several different forms:
Infection – an employee could allege they had caught the infection whilst at work due to their employers not providing PPE, enforcing the 2-metre rule, testing etc.
Psychological injury due to overwork – due to social distancing it may not be possible to have a full workforce but this could lead to others suffering increased stress as they have to cope with additional work.
Overwork or redistributed work leading to physical injury – when staff are covering for others it is essential that they are appropriately trained to do so and should be carefully monitored.
Working from Home – we are being encouraged to work from home where at all possible but an employer has the same responsibilities for their employees working environment as they do at their own premises so need to risk assess to ensure it is suitable and that the employee is properly equipped
Vicarious Liability – employers are vicariously liable for their employee’s negligence. It is possible to envisage claims where employers could be faced with claims attempts from clients where an infected employee has not self-isolated and continued to interact with customers, negligence from employee fatigue, claims where an employee has gone against instructions and operated equipment or vehicles that they are not authorised or trained to operate.
This does not paint a very pretty picture going forward but in the litigious society we live in and with potential hardship following job losses and a recession it is inevitable that attempts will be made. The key to defending such claims will be in the paper trail so employers should endeavour to get risk assessments in place with suitable PPE and guidelines for employees to follow in line with current Government Advice. All employees should be asked to sign to say they have read and understood what their responsibilities are when they return to work following lockdown.
Employers must ensure that they approach this risk as they would any other risk to the health and wellbeing of employees, taking sensible steps to discharge their duty of care and to document their assessment and adopted policies. Being able to demonstrate that you considered the risks carefully and took sensible steps to mitigate those risks will be crucial evidence in defence of any subsequent claim. If someone becomes infected at work in the absence of evidence of such steps having been taken, the employer is vulnerable to being found in breach of duty and liable for losses arising.
Planning should start with the current government advice, having regard to the need to identify vulnerable individuals, ensure the infected feel able to report symptoms and self-isolate, the instigation of sensible home working policies where possible, introducing appropriate social distancing measures, ensuring that appropriate facilities are available to wash/disinfect hands and that suitably robust and regular cleaning of premises is undertaken.
Damages would include awards for PSLA for the symptoms suffered, which could vary from the trivial to the fatal, plus compensation for a range of potential heads of past and future loss, in particular loss of earnings, care and domestic assistance.
As stated above, proving causation is likely to be extremely difficult. If you would like advice or help from ProAktive relating to risk management in your workplace, please get in touch with us on 01302 341 344.
By Jo Elliott ACII, Chartered Insurance Broker – Account Executive