Covid-19 is now a foreseeable risk: duty holders on notice

It is more important than ever for duty holders to be alert to the practical realities of managing health and safety in the workplace to avoid exposing themselves to civil litigation or enforcement action by regulators, including, in the worst case, prosecution.

The Covid-19 pandemic may be unprecedented but the duty to comply with the common law and health and safety regulations is not. The reputational and financial consequences for failing to comply can be immense.

The common law and health and safety legislation in England and Wales apply across the board: all duty holders have a duty to ensure the health and safety of employees and non-employees affected by their undertaking, so far as reasonably practical.

A failure to do so resulting in injury exposes duty holders to civil claims for damages. The criminal law does not require actual injury, the mere risk of harm is sufficient to establish a prima facie breach and, therefore, the possibility of enforcement action.

The law treats safety as a relative concept. Safety is judged according to the general and industry specific knowledge and standards of the time. This is assessed by reference to what might reasonably have been foreseen by a reasonable and prudent employer.

The risk of serious harm or death from Covid-19 is now a foreseeable risk to which we are all exposed in the course of work or using the services of others. All duty holders are now on notice of the risk and must act to manage it. The risk cannot (yet) be eliminated, but it can be reduced. Knowledge of how Covid-19 is transmitted and how to control it is evolving. Similarly, the law and guidance has and will continue to evolve.

Face coverings provide a good example: in March the guidance was that face coverings were of no benefit, now the law makes it a criminal offence not to wear them in settings such as public transport. Yet in other settings such as schools the circumstances in which face coverings should or must be worn varies between England, Wales, Scotland and Northern Ireland. In August, we were encouraged to Eat Out to Help Out. Now many cannot eat out at all, or in some cases, only with members of their household.

This may not inspire confidence in the rationale or effectiveness of the control measures. Nevertheless, two inter-related things are clear. First, duty holders must identify and implement reasonably practicable measures to reduce the risk of infection by reason of their undertaking. Second, authoritative guidance will continue to evolve, including industry specific guidance.

In truth there may be a tension between effective management of the risk of infection and effective management of the risk of litigation. Regulations must be complied with. But minimising the risk of litigation requires up to date knowledge and implementation of relevant guidance. Guidance is not law, but where risks and understanding of control measures are evolving duty holders are well advised to follow it or be able to justify why they have chosen not to if they are to protect themselves from litigation.

Keith Morton QC specialises in health and safety law at Temple Garden Chambers