The Return to Work After Lockdown
James Todd QC considers employers' health and safety duties[i]
As we enter the second phase of the national battle against Covid-19 it is possible to discern a change in the political climate. The cease-fire that has been in place for the last two months may be coming to an end, with the question of how the non-WFH workforce might resume fruitful economic activity dividing not just the political parties but also the national and devolved administrations. The early indications are that the conservative government's preferred approach is to hand over to businesses the task of designing the 'covid-secure' workplace and then managing the return of their workers. Detailed practical guidance from government and the HSE (https://www.hse.gov.uk/index.htm) is already arriving and there will be extensive consultation with the unions, whose priority will be to prevent a resumption of work in unsafe factories, offices and sites. No doubt much can also be learned from those businesses that have been able to continue operating during lockdown. To ensure safety and consistency, the prime minister has promised the close involvement of the HSE – spot checks of workplaces are even being planned – and returning workers are being encouraged to blow the whistle on unsafe practices and premises.
Assuming that employees can navigate the childcare and public transport challenges to get to work at all, the problems to be solved on the way to a resumption of normal service are many. How might social distancing operate in busy offices and factories? Can new shift patterns be created to spread people out across the working day? What PPE is needed and will it be available? What about testing? These are just a few of the practical issues that all businesses will have to grapple with.
The scope for mishaps in the newly organised workplaces will be significant: inadequate health and safety provision will not just increase the obvious risk of transmission of coronavirus among the workforce, but new and unfamiliar working practices will heighten the chances of accidents and injuries especially where machinery and dangerous work are involved. Nor will there be reticence among the workforce when it comes to bringing claims. The insured employer will remain a much more acceptable target for litigation than, say, the hard-pressed NHS in these times of crisis.
A convenient moment then to consider the duties the business operator owes to workers. Duties may arise at common law and, separately, under legislation, including the body of regulations mostly made under the Health & Safety at Work etc. Act 1974. The best known of these are grouped together as the 'six-pack' regulations, but they make up only a small part of the overall portfolio of regulations covering everything from the use of acetylene torches on construction sites to working with animals in zoos.
The basics: employers' duties to employees and others
The employer's common law duties to the employee are so widely known and understood as to render citation of authority unnecessary, but a recent crystal clear summary is to be found in Cockerill v. CXK Ltd[ii] where Rowena Collins Rice sitting as a deputy high court judge put it thus:
'…the essence of the employers' duty at common law, briefly stated, is to take reasonable steps to provide a reasonably safe place of work, and system of work, for their employees, so as to protect them, so far as reasonably practicable, from reasonably foreseeable harm. The case law is clear about the importance of context, in understanding what is reasonable, and in giving detailed meaning to that duty, in individual cases.'
A helpful guide to the necessary thought process for the employer planning the work can be found in the words of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [iii]:
"the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows and ought to know … [W]here he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions … He must weigh up the risks in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve."
Employers might seek to rely on the repeated emphasis on reasonableness in these definitions, but the jurisprudence over the decades has shown that the employer's common law duties are onerous. It is rare for the genuinely injured employee's claim to fail outright. This is not surprising when one considers how many components go to make up a safe working environment: the conduct of fellow employees, the physical state and layout of the premises, the equipment provided to do the job, the level of training and instruction of the workforce, adequate quantities of the right PPE, and so on. Very often the injured employee can rely on the employer's vicarious liability for the negligent default of a fellow employee, but even where this feature is absent it is usually possible to point to a failure of some aspect of the overall system of work as being unsafe and hence a breach of the common law duty. Furthermore, thanks to the role played by regulations and the involvement of bodies such as the unions and the HSE, matters such as design of the safe workplace and formulation of safe practices tend to conform to certain set criteria so that the room for debate and divergence is limited.
Of course, the risk of injury in a covid-unsafe workplace may fall on others who do not meet the strict legal definition of employee. They may be visitors, agency workers or the self-employed working there on a temporary basis, the last being a common feature of the work arrangements on construction sites. Duties are likely to be owed to these people by the business operator either in its capacity as occupier of the premises or through the existence of a separate common law duty of care[iv]. Liability to those workers may also arise through vicarious liability for the negligence of the business operator's employees.
In addition to common law and occupiers' duties, businesses creating a new covid-secure workplace must also pay close regard to the six-pack regulations and others created under health and safety legislation. This remains so even though the Enterprise and Regulatory Reform Act 2013 removed the direct right of civil actionability for their breach (as part of the coalition government's war on supposed red tape getting in the way of business). There have been surprisingly few cases dealing directly with the effect of this change. In the above mentioned case of Cockerill, the judge noted, encouragingly for employers, that the removal of the claimant's statutory cause of action reflected what she termed a 'rebalancing' of the relationship between the employer and the employee. She pointed out that not all breaches of the statutory regime would be negligent.
Nevertheless, it is safe to assume that the body of knowledge and experience created around these statutory duties will form the context for assessing the employer's performance of its common law duty of care. So much was confirmed by some members of the supreme court in Kennedy v. Cordia Services[v]. That is where the new government and HSE guidance is likely to fit in. The continuing central role of the regulations in business operations will also be evident where breaches lead to criminal prosecutions.
Probably the most important single regulation for businesses planning the return of workers is reg 3 of the Management of Health and Safety at Work Regulations 1999, which requires an employer to assess the risks to which both employees and non-employees will be exposed in connection with the employer's undertaking. Many decided cases have confirmed the importance of the risk assessment, whether performed under the regulations or in pursuance of the employer's common law duty. The words of the supreme court in Kennedy merit quotation:
"…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. … The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees. That is because the whole point of a risk assessment is to identify whether the particular operation gives rise to any risk to safety and, if so, what is the extent of that risk, and what can and should be done to minimise or eradicate the risk."
This passage has clear resonance in the present context. Quite simply, any business preparing for a resumption must carry out a full risk assessment of its whole operation. Such assessments are sometimes dismissed as irritating red tape or box-ticking exercises but particularly in these extraordinary circumstances, the properly documented risk assessment will be key both to creating the covid-secure workplace and to evidencing the thought processes that were followed if and when something goes wrong. The supreme court took care to emphasise this in Kennedy, where they expressly approved earlier dicta of Smith LJ in Allison v London Underground Ltd [vi] to the effect that that the most logical way to approach a question as to the adequacy of the precautions taken by an employer was through a consideration of the suitability and sufficiency of the risk assessment.
Getting people back to work safely and productively will be the priority in the coming weeks and months. Provided that government and HSE guidance on creating a covid-secure workplace is sufficiently comprehensive, those with the unenviable task of planning, at alarmingly short notice, for their business to resume will be best advised to follow it to the letter. Half-measures or ill thought out schemes will put workers' safety at risk and litigation will inevitably follow. Those running businesses and their insurers are already aware that, in the context of injuries suffered in the workplace, where there is blame there usually is a claim.
[i] With thanks to Christian Du Cann for his contributions to this article.
[ii]  EWHC 1155
[iii]  1 WLR 1776
[iv] See eg Ceva Logistics v. Lynch  EWCA Civ 188
[v]  UKSC 6
[vi]  ICR 719. See also Bass v. Ministry of Defence  EWHC 36 for a recent, pre-covid example of the significance of risk assessment in a disease transmission case.