Can employees sue you if they catch COVID at work?

FAQ: The Institution of Occupational Safety and Health’s head of advice and practice, Duncan Spencer, discusses the legal liabilities employers face in the wake of COVID-19.

by Orianna Rosa Royle
Last Updated: 09 Oct 2020

What are the health and safety obligations of employers whose staff are continuing to work from the office?

The duty of care to the employee and others means that employers must conduct an assessment of the risk of COVID-19 transmitting to other employees or to third parties (e.g. delivery drivers, customers) in the workplace. Based on the findings of this analysis, employers must put in place suitable controls to reduce the likelihood of transmission occurring. Among the raft of guidance IOSH has produced as part of its COVID-19 hub is information on risk assessments, which can be found here.

What do employers face if they fail to meet legal safety requirements at work?

In the UK, employers face prosecution under statute law and potential litigation from the injured parties under common law. 

Are there health and safety obligations of employers whose staff are working from home?

Yes. Think of it this way. An employee only does what they are directed to do. Line management tells employees what to do and therefore has the responsibility for the risk that the employee faces in following those instructions. It is a master-servant relationship under UK law. Therefore the employer has responsibilities under statute law for any risks associated with the task being completed at home, for example the risk associated with using laptops. While the employer has no right to enter a private premises to make an assessment, they can seek reassurances for such things as whether the workstation is set up and used safely and that electrical wiring is safe. IOSH has guidance around how to manage remote working safely, which can be viewed here.

Which steps can employers take to protect themselves from claims of breach of duty of care?

They can control what they can, for example providing equipment, training and instruction to set up a computer workstation safely at home. With what they can’t control, they must be seen to identify the risk and provide advice. For example, not overloading plug sockets with office equipment, which can create a fire risk. 

Will employers be liable if the staff they've asked to work in the office catch coronavirus?

This has not yet been tested in court to my knowledge. The complicating factor is knowing precisely where the individual contracted the disease. Was it in the corner shop, on the bus, from a loved one, a colleague or a customer? There is no way of knowing really – meaning there would be reasonable doubt. The key here is what steps did the employer take to control transmission:

- Were adequate hygiene measures in place (e.g. cleaning regimes, providing adequate hand washing facilities)?
- Did the employer seek to put in place procedures, barriers and personal protective equipment to protect people (e.g. masks, distancing rules)?
- Did the employer educate their employees about the risk and how to protect themselves?
- Did they supervise employees to make sure they were following the rules?
- Did the employer identify vulnerable employees and take additional steps to protect them? 

Failing to put in place measures that address these things would be seen as unreasonable. The Health and Safety Executive has suggested that there may be grounds to prosecute in serious cases. Under common law, failing to put in these measures may well provide grounds for the employer to be sued for contributory negligence. The advice here is to seek and follow good guidance and implement at least common practice.

Does employers' duty of care extend to commuting to work?

No. Employers are only responsible for the employee while at work. For most, that is when they cross the threshold in the workplace. The only time that this is not the case is when they travel from their place of residence to other places by the nature of their work (e.g. delivery drivers, sales representatives). In such cases, they are at work as soon as they drive off from home. The employer would also have some liability for their safety and health while travelling between places. 

Do employers have to shut their office if an employee gets a confirmed case of coronavirus?  

It would be the wise thing to do. This will enable the premises to be given a deep clean and for potentially infected employees to be tested. When the place is clean, negatively tested employees, or those that were definitely not exposed, can return.

Duncan Spencer is head of advice and practice at The Institution of Occupational Safety and Health (IOSH)

Image credit: pixelfit via Getty Images

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