Failing to take reasonable measures to safeguard employees, such as staff being required to work in close quarters or with insufficient protection, could result in an Employers’ Liability (EL) claim being made.
Whilst the Employers' Liability (Compulsory Insurance) Regulations 1998 prohibit insurers from refusing to indemnify an insured for their actions or omissions, they can seek reimbursement for any amounts paid out in circumstances where, in their view, there has been a fundamental breach of some form of policy obligation or policy condition – including failing to fulfil statutory health and safety requirements. It is essential therefore, that businesses have taken the necessary steps to assess the risks to the health, safety and welfare of their employees that may have arisen as a result of the COVID-19 pandemic.
As part of a series of webinars, Fergus Dolan – regional sales director, Kerry Hawker – regional claims director, and Neil Hodgson- managing director of Risk Management, all from Gallagher were joined by Thomas Jordan – partner at DAC Beachcroft LLP, to discuss the actions, systems and processes that organisations need to undertake when framing an appropriate return to work system – to enhance their defensibility in the event of a COVID-19 related EL claim.
Duty of care
The essence of an employer’s duty of care to their employees, under the Health and Safety at Work etc. Act 1974, is taking reasonable steps to provide a safe place and safe systems of work to protect their staff, as far as is reasonably practical to do so, from any reasonably foreseeable risk of harm.
“To discharge this duty of care, and in the defence of a COVID-related EL claim, it is essential for employers to prove that they have implemented a safe system of work in an attempt to mitigate against the effects of the spread of COVID-19 in the workplace,” Thomas Jordan advised. “They will also need to demonstrate the extent to which the system is being followed in practice by employees, and show that this system is reassessed on a regular basis to identify new and evolving risks as updated guidance is issued.
“The starting point for employers should be a careful review of HSE guidance on the risks of transmission of COVID-19 in the workplace, and then they should carry out a risk assessment with a view to minimising the risks to the lowest practical level,” Neil Hodgson said.
“Over 75 percent of risk assessments we’ve reviewed for clients so far during the pandemic have failed legal obligations as suitable and sufficient. A thorough risk assessment needs to demonstrate that proper checks were made, employers have considered who might be affected, and have dealt with all the obvious significant risks, taking into account the number of people who could be involved.
“To evidence implementation of controls, clear records need to be kept of measures introduced, how they’ve been reviewed, and any changes made and when – by taking steps such as implementing social distancing measures, introducing workplace shift patterns, promoting regular handwashing and ensuring routine deep-cleaning sessions. If a business has 50 or more employees, Government guidelines advise the risk assessment should be displayed on their website.
“Employers that can evidence they have tailored and applied these guidelines to their specific business environment, and have clearly communicated both the risks and required mitigation measures to its employees and customers, should be well placed to defend any potential claims.”
In addition to establishing a breach of duty, an employee would also need to prove causation. This means proving that the breach made a material contribution to the illness sustained in order to establish liability. This would involve proving the infection occurred on-site (and not elsewhere, for example on an employee's journey to or from work), and demonstrating that the infection itself resulted from a specific workplace breach or failure to implement adequate health and safety practices.
“Given the communicable nature of the disease, in many cases it will not be clear when and where the virus was contracted,” Thomas said. “Consideration will also likely be given to the nature of the employee’s duties and the extent to which they were exposed to a greater risk and the extent to which the employee was likely to be exposed to COVID-19 in the workplace, as opposed to in the community.
“Additionally, given Government advice to those with symptoms to refrain from seeking medical advice unless in the case of severe symptoms which require hospitalisation, medical records to confirm the diagnosis will be hard to source. Although antibody testing has become more widespread, a positive diagnosis can only confirm whether a claimant has had the virus, rather than establishing when they might have caught it.”
“Although causation is difficult to establish, this is another example of where evidence plays a key role in ensuring employers have taken the necessary steps to safeguard the welfare of their employees,” Neil advised. “This includes documenting any measures taken and the reasons for doing so – including instructing employees to report symptoms and self-isolate, identifying vulnerable individuals, and implementing sensible home working policies where possible if employees are particularly at risk, including those who are pregnant or have underlying health conditions.
“It is also advisable to keep records of training and support provided to employees on any new controls implemented, particularly around the use of PPE, and issue written warnings if the PPE is not worn, to show every effort possible has been made to educate staff on managing risks in the workplace,” he added.
Validating your risk assessment
“The actions, systems and processes that employers undertake now to safeguard their staff will determine whether claims are brought and, as importantly, whether they are successful,” said Kerry Hawker. “Actions businesses need to take include ensuring they are keeping abreast of current Government advice and changes in the law, assessing the business risks as a result of any changes implemented due to the pandemic, regularly reviewing risk assessments due to the changing nature of the pandemic, and keeping a paper trail of risk assessments to evidence the considerations taken.”
As the UK Government’s response to the pandemic continues to develop, businesses must keep their risk strategy and the measures they are taking under continuous review. To verify that your COVID-19 risk assessment is both suitable and sufficient, Gallagher offers a validation service to help businesses ensure they have the correct controls in place. Our health and safety consultants will review the documentation against existing legislation, COVID-19 guidance and protocols, and flag any areas requiring improvement - enhancing your mitigation and defensibility in the result of a COVID-related EL claim.
For a further discussion, please contact our specialist Risk Management Services practice.
1. Data based on businesses surveyed from 18 May – 30 June: 110 of 145 businesses failed, equal to 75.86%.
This note is not intended to give legal or financial advice, and, accordingly, it should not be relied upon for such. It should not be regarded as a comprehensive statement of the law and/or market practice in this area. In preparing this note we have relied on information sourced from third parties and we make no claims as to the completeness or accuracy of the information contained herein. It reflects our understanding as 07/07/2020, but you will recognise that matters concerning COVID-19 are fast changing across the world. You should not act upon information in this bulletin nor determine not to act, without first seeking specific legal and/or specialist advice. Our advice to our clients is as an insurance broker and is provided subject to specific terms and conditions, the terms of which take precedence over any representations in this document. No third party to whom this is passed can rely on it. We and our officers, employees or agents shall not be responsible for any loss whatsoever arising from the recipient’s reliance upon any information we provide herein and exclude liability for the content to fullest extent permitted by law. Should you require advice about your specific insurance arrangements or specific claim circumstances, please get in touch with your usual contact at Gallagher.