Covid-19 and Employers Liability Insurance

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 overworkdue 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 injurywhen staff are covering for others it is essential that they are appropriately trained to do so and should be carefully monitored.

Working from Homewe 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.

Early identification of the infected, and those in close contact with them, is essential.

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

 

 

 

 

 

Is your insurance cover still protecting your business?

Insurance cover might not be at the forefront of your mind at the moment, but it is as important now than ever.

We have already explored and communicated some important features and changes to your insurance cover during the Covid-19 pandemic. We have spoken to lots of companies who have made adjustments to their business to adapt and follow the governments guidance, which as we know includes working from home where possible. Recently we discussed premises becoming unoccupied and the need to inform insurers in these circumstances. Whilst a lot of insurers have amended their standard wordings to allow some leeway with the notification period, we would urge you not to lose track of this.

Where computer and other office equipment have been taken away from the office and to the homes of employees, it is also important to ensure your insurance extends to cover this, often known as ‘All Risks’ cover. Again, insurers appreciate the unprecedented circumstances, and many have automatically extended their policies, but it is vital that you make your broker aware of this so they can confirm accordingly and amend your cover if necessary.

At this juncture it is also important to consider the other risks to your company which have increased as a result of the changes we’ve all had to make. Cyber attacks are on the rise which make it all the more difficult for businesses to function with their employees at home, relying on the limited equipment available. Other exposures that may also be increased are Directors and Officers as well as Employment Practices Liability. Therefore, it has never been more important to assess your cover and vulnerabilities.

It may be the case that some of the cover you have can be reduced if not currently required or being used, however, this will depend on your individual business needs and activities. We would suggest contacting your broker for a discussion on this matter if this could apply to you.

By Molly White Cert CIICommercial Account Handler

 

Can employers carry out disciplinary and grievance procedures during the Coronavirus pandemic?

Many businesses were already in the throes of disciplinary and grievance procedures and when Covid-19 hit, and the initial Government restrictions came into force on the 23rd of March, most employers paused these processes as there were other priorities to deal with.

Many employees were put on furlough or began working from home however, employers are now wondering if it is safe to resume or conclude these processes or deal with any new issues which are arising as employees return to work.

Whilst in the early stages of this crisis there was a great deal of uncertainty, guidance has now been issued by ACAS to confirm the position.

If employees are furloughed:

ACAS guidance suggests that if someone is currently on a period of furlough they can still participate in a disciplinary or grievance hearing or investigation without this interrupting their period of furlough leave, including if they are the subject of the hearing, acting as chair, minute taker or witness. This is as long as they’re doing it out of their own choice (‘voluntarily’) and it takes place inline with current public health guidance. Whilst we do not have any official clarity from the government or the HMRC that participating in formal hearings during a period of furlough is allowed under the Coronavirus Job Retention Scheme (without breaking the period of furlough or affecting an Employers ability to claim), ACAS are an independent public body funded by the Government and is the leading authority on all things relating to employment.

 

Whilst an employee is furloughed it is important to remember that you cannot ask your employee to do any work that:

  • makes money for your organisation or any organisation linked or associated with your organisation
  • provides services for your organisation or any organisation linked or associated with your organisation.

 

Businesses should also consider the personal circumstances of the employees who are working from home or on a period of furlough. For example, if they are self-isolating or have childcare responsibilities whilst schools remain closed.

 

Practically, it may be challenging to conclude a formal hearing whilst employees are on furlough as they may not have access to other staff members or information at their workplace in order to prepare their case. This should be carefully considered when deciding if it is appropriate to continue or to postpone the formal process.

 

Subject to an employee agreeing to participate, the hearing should place in line with the current public health and Government guidance.

 

Carrying out a meeting

There is no doubt that the Coronavirus Pandemic has resulted in businesses looking for new and innovative ways of working including the use of new technology.

Hearings must take place in line with the current public health guidance and as part of this, you may want to consider alternative ways to conclude hearings, such as holding them remotely via conference call or video meetings etc. When selecting the most appropriate way of holding the meeting you should ensure that the security level of any application you use is in line with your Privacy and GDPR policies.

The right for an employee to be accompanied at a disciplinary or grievance hearing still applies. The employee’s chosen companion must be able to attend the hearing, even if it is being carried out through a video meeting. During the coronavirus pandemic, the availability of an employee’s chosen companion might be more limited than usual. For example, caring responsibilities. The Employer should consider if a delay of more than 5 days is reasonable in the circumstances.

 

Other considerations include:

  • Does everyone have access to the required technology?
  • Does anyone involved have any disability or other accessibility issues that might affect their ability to use video technology, or are any reasonable adjustments needed?
  • Can any witness statements or other evidence be seen clearly by everyone involved during the hearing?
  • Will it be possible to fairly assess and question evidence given by people interviewed in a video meeting?
  • Is it possible to get hold of all the evidence needed for the investigation or hearing, for example records or files that are kept in the office?
  • Is it possible for the person under a disciplinary investigation or who raised a grievance to be accompanied during the hearing and is it possible for them to confer in private during the meeting?

It is worth noting that if the employee prefers to have the process paused to allow an in-person hearing to be arranged then this is more appropriate than insisting on a remote hearing. Alternatively, if the matter is of a serious nature it may not be appropriate to delay the process.

The employee’s right of appeal

The employee’s right of appeal still applies.

It is important to remember that the law and ACAS Code of Practice on disciplinary and grievance procedures still apply during the coronavirus pandemic. This includes whilst social distancing and lockdown measures are in place.

Whether the employer decides to go ahead with the procedure or postpone it, they should explain their decision to those involved. This will help everyone to be clear about what has been agreed and why.

Participating in a formal hearing during the current pandemic will no doubt be stressful for all concerned and employers should give careful consideration to the health and wellbeing of all participants when deciding on how best to proceed. If you would like further information or advice, please contact our HR Consultancy Team on 01302 341 344.

By Louise Turner MBA Assoc CIPDHR Business Partner

Working safely through Coronavirus (Covid-19)

We understand how hard things are at the present time and that you will be concerned for the safety of your families and your employees.

The government has similar concerns for the safety of your employees and has tasked the HSE to monitor safety standards within businesses at this time. To this end, the HSE has been provided with an additional £14m of funding to pay for more telephone agents, inspectors and equipment. Inspectors have been told to get out into the workplace and make sure standards are being maintained, in terms of normal work activities, and raised, where necessary, to protect the workforce.

As is normal, the HSE won’t say where they are going to go or when. Their presence therefore looms over us all. Whilst all we can do is strive to do what’s reasonable and proportionate for the protection of everyone, you should be aware that there is the potential that your decisions could be questioned.

You should also be aware that the HSE have set up a new report line specifically for employees to report concerns that employers aren’t doing enough to protect them from COVID-19. It is inevitable that any reports to this new line will raise suspicions and questions, again, will be asked. At the heart of the matter is the government’s advice on how to work safely during this outbreak (https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19).

At ProAktive, we have tailored our advice to suit your sector. If you require any further advice on how best to protect your people and your business, get in touch with us. We’re here to take your call and are set up to discuss over a video call if you would prefer.

What is your insurer’s current stance on your unoccupied premises?

As the Covid-19 situation develops and more businesses start to work from home, it is essential you are aware of the policy conditions that come into play when leaving your premises unoccupied for a number of days. Insurers are trying to help business by reducing the conditions applied and extending the number of days where it is mandatory to report that the premises are unoccupied. But do you know what yours is saying?

Aviva, NIG, Hiscox and Folgate insurance have all extended the notice period to insurers of unoccupancy to 90 days as opposed to 30 days. Other insurers such as RSA, AXA and Ansvar are still requesting notification but are relaxing the conditions applicable when a property is unoccupied where it is not reasonable or safe to manage. Most insurers, as long as they are informed, are adapting their stance on a case by case basis as to what is reasonable for you and your business.

Despite insurers relaxing their position, there are still conditions that may apply to your premises whilst unoccupied such as:

  • All security such as alarms and CCTV must be activated
  • Regular visits to the premises (where safe and reasonably possible) to make sure the property is secure must be undertaken
  • Mains water to be switched off

If you are unsure of the conditions on your policy, believe you are unable to comply with certain ones or if you don’t know your insurers current stance, please do get in touch with your broker/insurance contact so your insurers can be informed and your cover remains in place throughout this difficult time.

By Rachel Storey Dip CII- Account Executive

Have your premises become temporarily unoccupied as a result of Covid19?

If you are one of the companies who have had to temporality close as a result of the latest government advice, we understand that you will have enough on your mind already.

Most insurance policies do however contain a clause regarding notification to your insurer if your premises/business becomes unoccupied. Every insurers stance is slightly different and therefore we ask in the first instance that you let us know if this affects you and we can discuss with your insurers accordingly.

Our initial advice would be to ensure that all of your existing security protections and alarms have been activated and where possible premises are visited on a regular basis. We realise that subject to isolations this may not always be possible.

We are confident at this stage that there will be no cover restrictions, but we strongly recommend that you notify any change in circumstance.

By Helen ParsonsBroking Manager

Our Mental Health & Coronavirus

As we head into this unprecedented time, it is natural that we concentrate on the physical measures required to stop the spread of the disease. What we may do though, is neglect our mental health during this period. We are not experts in this field, however we thought it might be prudent to bring together some sensible advice that may be of help.

Firstly, the World Health Organisation (WHO) has published an in depth document with advice during the crisis (click here). It gives some sensible brief advice: minimise watching, reading or listening to news that makes you feel anxious; keep updated through official sources only and; get the facts not the rumours.

This might not make much sense initially, but it’s easy during these times to become addicted to Twitter and Facebook messages of doom. Getting advice from recognised official sources means that you’re not participating in misinformation and you are getting the information that you really need. The WHO also advise to maintain social contact, with neighbours and friends, and not to be afraid to express how you feel. Finally, it is important to maintain exercise to aid mobility and ease boredom, particularly if you are in isolation.

The Mental Health Foundation also has some good advice (Click Here). It reinforces the WHO’s advice regarding news, but further advises to: stick to a normal routine if possible, remembering stress management and a healthy diet; try not to make assumptions about who or what is responsible for the outbreak and; try to anticipate distress.

It is natural to feel vulnerable and overwhelmed, so it is important to try and reassure people that you know might be worried or who you know are alone during this time.

Finally, OCD UK has some salient advice for sufferers (Click Here) which includes: limiting hand washing time to the 20 seconds recommended by medical experts; not allowing OCD to dictate self-isolation; and that it is okay to continue any ongoing therapy.

It’s important to end this on a positive note and OCD UK helpfully provides a list of things that we can still do:

  • Listen to music
  • Talk to and video message friends and family
  • Read your favourite books
  • Enjoy the outdoors, even if it’s your garden in the short term
  • Sing or dance at home (sometimes it’s best that these are done behind closed doors!)
  • Smile and laugh
  • Watch your favourite film or tv shows
  • Have hope

Some further useful sources of information includes: The American Centres for Disease Control (CDC), The United Nations (UN), Mind UK, The UK Government and Public Health England.

We’re in this together. Please get in touch with us if you feel we can help you with managing risk in your workplace.

By Ian Clayton CMIOSHHealth and Safety Manager

A message from our CEO, Ian Laycock

“It’s Business as (un)usual”

 

 

Those of us in the business of risk management have long feared the impact of a global virus but if we are honest, we had in mind a virus in our technology rather than in the population. It seems we live in unpredictable times.

During recent weeks we have developed plans to ensure we continue to support you with the least possible disruption. We are receiving many more calls than usual so please bear with us if it takes a little longer than usual to respond. But rest assured, we will respond.

First and foremost, the well-being of our staff, customers and suppliers is paramount. At present we are following government guidelines and, in some cases, where there is some degree of vulnerability, we are taking additional precautionary measures.

We are determined to continue to provide continuity of service and to this end, all client facing staff have the ICT, telephony and therefore capability to work from home. In the light of government advice on Monday night, most staff will operate remotely from Wednesday 18th March 2020.

In the event of further significant disruption we have identified and will prioritise key functions to ensure your cover remains in force and claims are dealt with as effectively as possible. In recent days we have spoken with our key suppliers who share our objectives and have similar plans in place to ensure continuity.Of course, the way we communicate with you in weeks to come may change. We have video conference facilities and intend to use these where-ever possible.

Over the last 30 years we have faced many challenges and each time, thanks to our staff and customers we have emerged stronger. We have planned for the worst, added a large dose of common sense and intend to continue with as little fuss as possible.

Regards,

Ian.

 

Getting your workplace ready for Covid-19

 

The World Health Organisation (WHO) has set out guidance on how businesses and employers can help to stop the spread of the new Coronavirus disease.

How does Coronavirus spread?

When someone who has COVID-19 coughs or exhales they release droplets of infected fluid. Most of these droplets fall on nearby surfaces and objects – such as desks, tables or telephones.

People could catch COVID-19 by touching contaminated surfaces or objects – and then touching their eyes, nose or mouth. If they are standing within one meter of a person with COVID-19 they can catch it by breathing in droplets coughed out or exhaled by them. In other words, COVID-19 spreads in a similar way to flu.

Preventing Coronavirus in the workplace

The guidance stresses that employers should start taking these the following measures now, even if COVID-19 has not arrived in the communities where they operate:

 

  • Make sure your workplaces are clean and hygienic
    • Surfaces (e.g desks and tables) and objects (e.g telephones, keyboards) need to be wiped with disinfectant regularly

 

  • Promote regular and thorough hand-washing by employees, contractors and customers
    • Put sanitizing hand rub dispensers in prominent places around the workplace. Make sure these dispensers are regularly refilled
    • Display posters promoting hand-washing
    • Offer guidance from occupational health and safety officers
    • Make sure that staff, contractors and customers have access to places where they can wash their hands with soap and water

 

  • Promote good respiratory hygiene in the workplace
    • Display posters promoting respiratory hygiene. Combine this with other communication measures
    • Ensure tissues are available at your workplaces, for those who develop a runny nose or cough at work, along with closed bins for hygienically disposing of them

 

  • Advise employees and contractors to consult national travel advice before going on business trips

 

  • Brief your employees, contractors and customers that if COVID-19 starts spreading in your community, anyone with even a mild cough or low-grade fever (37.3 C or more) needs to stay at home
    • Make clear to employees that they will be able to count this time off as sick leave

 

 

For further risk management advice as an employer, please contact our team on 01302 341 344.

By Ian French CMIOSH Risk Consultant

 

 

Coronavirus (Covid-19) within the Workplace

At the time of writing this, the virus has been reported in at least 60 countries around the world and it is not unreasonable to assume that it will spread much further over the coming months. The Government expect the UK to be ‘significantly affected’ and a fifth of workers may be absent from work due to the virus.

Plenty of information on steps to prevent the spread of the virus is now out there in the public domain and can be found here, however questions are now being asked about how to manage employees fears of catching and spreading the virus.

Employees Returning from Holiday

The Government advice currently is as follows. If employers are returning from significantly affected areas i.e. China, South Korea, Iran and some specific places in Northern Italy they should self-isolate themselves until they have a negative test or are symptom free for 2 weeks. For all others they only need to isolate themselves if they experience any symptoms. More info on the symptoms can be found here. This is regularly being updated as the situation changes.

What if the above doesn’t satisfy other Employees?

One of the issues we are finding is that whilst you can follow the Government advice as above, this may not satisfy all employees. For example, if employees have young children, or care for relatives who are deemed vulnerable then they may not feel comfortable working with someone returning from outside the UK. In this scenario it may be prudent to allow those employees to work flexibly from home, take holiday, take unpaid leave or a combination of them all. You should risk assess each case on it’s own merits, in some instances and where possible, it may be sensible to ask a returning employee to work from home to reduce the possible impact on the rest of your business.

What do I have to pay Employees?

Currently, when an employee is off absent from work due to illness, they are entitled to receive Statutory Sick Pay, or Company sick pay where applicable. However, the Government has advised Statutory Sick Pay can apply to persons who are self-isolated following medical advice. If you ask someone, who falls outside of the above advice, to remain at home due to concerns about spreading the virus, you will need to consider suspending them on full pay.

What’s Next?

At present the UK is in a ‘containment’ stage. If cases rise the Government has confirmed we will enter the ‘delayed’ stage, and it is at this point where they will review their policies and provide advice on whether activities like large scale organised events should take place.

We recommend that all Companies maintain good communication with their employees about Government and World Health Organisation updates, provide information on how to prevent the spread of the virus and make sure all employees know what to do if they are experiencing symptoms as well as listening to their concerns. Where possible and if practical Companies should think about flexible working strategies and plans in case those affected reach significant levels.

By Kris Kerins BSc (Hons) PGC (Tech Mgmt)HR Business Partner