Coronavirus, PPE and employers’ legal duties

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Is my employer to blame for me catching coronavirus?

The  COVID-19 coronavirus crisis has highlighted how important personal protective equipment and safe working environments are. Personal Injury solicitor James McNally considers whether employers might be held legally responsible for illness suffered by their employees during the pandemic.

What are employer’s legal obligations?

When considering the question, ‘Is my employer to blame for me catching coronavirus?’ it is important to start by examining the legal duties employers have to look after their employees’ heath and wellbeing.

An employer has a legal duty to provide an employee with a safe workplace. This includes ensuring they have the correct training, instruction and supervision. If after taking all these steps some risk of injury still remains, then the employer should consider the use of Personal Protective Equipment, or PPE.

What is PPE?

Personal Protective Equipment is equipment that will protect the user against health or safety risks at work. The HSE give examples of PPE such as safety helmets, gloves, eye protection, high-visibility clothing, safety footwear and safety harnesses. It can also include respiratory protective equipment.

The requirement of an employer to provide PPE is contained within laws such as the Personal Protective Equipment Regulations 2002 and the Personal Protective Equipment at Work Regulations 1992.

What PPE should be provided?

PPE should be provided to employees free of charge and must be chosen very carefully. Employees must be trained to use it properly and be told how to detect and report any faults.

The PPE provided should be:

  • CE marked in accordance with the Personal Protective Equipment Regulations 2020;
  • Able to be used with more than one item of PPE at a time if appropriate e.g. safety glasses that do not disturb the seal of a respirator, causing air leaks;
  • Issued with proper instruction and training. Employees should be told why it is needed, when to use it and what the limitations are;
  • Properly stored and kept in a good condition if reusable; and
  • Properly maintained.

An employer’s duty to provide PPE therefore goes beyond simply supplying it. For example, following the COVID-19 outbreak the HSE have issued employers with  guidance on the importance of ensuring face masks are fitted properly before use so as not to put employees at risk:

https://www.hse.gov.uk/news/face-mask-ppe-rpe-coronavirus.htm.

Is my employer to blame for me catching coronavirus by failing to provide PPE?

If an employer fails to provide appropriate PPE then they could be leaving themselves open to a compensation claim if an employee suffers an illness or injury that the PPE could have prevented.

And its not just a failure to supply PPE that could land employers in trouble. In addition, the Workplace (Health, Safety and Welfare) Regulations 1992 cover environmental factors including temperature, space and ventilation; structural features such as windows and doors; and welfare factors including toilet, washing and changing facilities. Employers have a duty to ensure that workplaces under their control comply with these regulations. If they fail to do so and an employee is harmed as a result they could become legally liable.

Making a compensation claim against an employer for failing to supply PPE

For a compensation claim to succeed an employee must show that their employer should have identified the existence of a risk and then failed to take necessary steps to limit exposure to that risk.

In respect of COVID-19 coronavirus an employee might bring a claim if they weren’t provided with appropriate PPE or if their employer failed to take appropriate steps to limit exposure, such as ensuring there were appropriate washing facilities or space to practise social distancing.

Is the COVID-19 coronavirus pandemic a special case?

That appropriate PPE isn’t available due to high demand and supply issues wouldn’t appear to be a valid defence to a compensation claim. If there is an identified need for PPE for the task to be carried out safely then an employer should not expect an employee to work without it.

Obviously, the reality of the situation is that an employee may feel they have no alternative but to work without PPE or carry on working in unsafe conditions. Doctors, nurses and AHPs have shown that they are willing to put themselves at risk during the crisis in order to continue to look after patients. In such situations could it be argued that they have voluntarily accepted the risk of becoming unwell?

Judges have been asked to consider similar issues before, involving rescuers who suffer injury as a result of putting themselves in a dangerous situation while helping others. The law has stated that a legal duty is owed to a ‘rescuer’ if a reasonable person in the rescuer’s position would have felt obliged to assist. The Courts have ruled that “exceptional bravery is not foolhardiness”.

How do I prove that my illness is due to my employer’s lack of care?

Another difficult issue will be proving that a COVID-19 coronavirus illness was caused by failings on the part of an employer rather than some other cause. When making a compensation claim an employee must show that there is a causal connection between the employer’s  failure and their injury or illness. So, how  is an employee going to be able to show that they contracted coronavirus because of their workplace and not from any number of possible situations away from work and out of their employer’s control?

Similar evidential problems arise when bringing claims for food poisoning. A successful claim is reliant upon clear evidence showing what was eaten and when. With so much about coronavirus being unknown however, and with such a variety of symptoms, variable incubation periods and a lack of testing to confirm a definite diagnosis, it is difficult to see how there can be any such certainty.

The courts might adopt the approach used in asbestos cases. Judges have ruled that even environmental exposure to asbestos in the general atmosphere does not diminish an employer’s legal responsibility In these cases the questions that have to be considered are:

  • Can the employee prove that if it wasn’t for the employer’s breach of duty he would not have developed the condition?;
  • Can the employee prove that their employer’s breach of duty has  materially contributed to the development of the condition?; and
  • Can the employee prove that the employer’s breach of duty has in fact materially increased the risk of developing the condition?

It is easy to see how a similar approach could be taken in respect of claims for those who contract COVID-19, with the courts perhaps apportioning responsibility and requiring employers to pay a percentage of the compensation even if there is no concrete evidence linking their failings to the development of coronavirus.

How we can help

It remains early days and the future for all involved is uncertain. There are far too many ifs and buts to say where the legal liability will ultimately lie. It cannot be completely dismissed that a policy decision may yet be made to limit any such liability. A government may take a view that businesses and insurance companies struggling to cope financially following the pandemic should not face the further burden of claims against them. But would that be fair if an employer’s lack of care has caused its employees to suffer unnecessarily or even resulted in them losing their life?

We will be monitoring the situation and will post updates on the legal position once it becomes clearer. In the meantime anyone who is wondering, ‘Is my employer to blame for me catching coronavirus by failing to provide PPE?’ is welcome to call our free legal helpline on 0808 139 1606. Alternatively you can email details to us at [email protected]