In these unprecedented times, it is widely acknowledged that employers have a duty to protect workers against the risk of contracting Covid-19 in the workplace. While those most at risk are likely to be individuals working in the health, social care, transport and retail sectors, key workers across all industries are potentially at risk of being exposed to the virus.
Whilst it is accepted that some work is essential and that the risk can never be reduced to zero, there remains an onus on employers to reduce that risk insofar as practicable. The principle of employers being expected to take all reasonable steps to ensure the health and safety of their workers is an enduring one, and so the question is therefore, what extra steps a reasonable employer has to take to ensure the safety of their employees whilst at work in the specific context of Covid-19?
Controversy surrounding the provision of Personal Protective Equipment (PPE) has been widely documented in recent months. Shortages of masks, gowns and gloves have been reported across the country and will doubtless result in exposure for key workers and all those interacting with them. Where those risks were avoidable, and contraction of Coronavirus has occurred as a result, it is likely that the employer will be held liable for the consequences of that in the same way an employer would be liable for any injury or illness contracted by their employee in the course of carrying out their role.
Whilst the question of employers' liability for the contraction of Covid-19 is relatively unexplored area of law, the general principle that an employer is responsible for the welfare of employees is well established. The Coronavirus is a new risk that society has only recently become aware of, but nonetheless the duty on an employer to protect their staff against that risk is likely to be as robust as ever.
Whilst national shortages of PPE are well documented, if an employer has failed to take reasonable steps and to make all efforts to secure that PPE, then legal liability is likely to attach for the resulting infections. An employer is responsible for all foreseeable consequences that flow from the contraction of Covid-19 in those circumstances, including a bereavement where that occurs.
The duty of an employer in relation to Coronavirus is likely to extend further than simply the provision of PPE. If an employer asks an employee to undertake work that is likely to be unsafe or places an employee at greater risk, then notwithstanding the provision of PPE the employer could still remain liable. For example, if certain work cannot be undertaken whilst PPE is being worn, but the employer directs an employee to undertake that work regardless, then an employer is likely to be liable for the resulting contraction of Covid-19 and any ill health or other consequences that arise from that.
The Coronavirus is clearly an unprecedented and emerging threat to safety at work, particularly so as more and more employees are expected to return to work in office buildings, shops, hotels and other places of employment across the country. That being said, fundamental principles of employers' liability will remain and it will be for the Courts to determine the extent of liability for each employer depending on the particular circumstances of any claim.
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