UK employers face a rising risk of personal injury claims by employees who allege they contracted the virus while at work
The UK government has removed (1 April 2022) specific and prescriptive guidance for employers around Covid-19 risks. But, in this new stage in the response to the virus, could employers now face attempts by employees to claim against them for exposure to Covid-19 risks in the workplace, particularly as businesses look to encourage or even mandate a return to the office?
What would an employee have to prove to succeed in a claim? To establish liability, an employee would have to prove both:
- Breach – that their employer was negligent and breached its duty of care to reduce the risk of infection in the workplace to the lowest practicable level.
- Causation – that their employer's negligence has caused or materially contributed to the employee contracting Covid-19.
Breach of the duty of care
All employers have statutory duties to provide a safe place of work and a general legal duty of care towards anyone (for example, sub-contractors, visitors etc) who may access or use their business premises. The duty encompasses providing a safe system of work, safe work equipment and a safe place of work.
What does this mean in the context of Covid-19? Employers will be required to take the following steps to demonstrate they have discharged their duty of care:
- Follow the latest government guidance and, furthermore, the specific guidance in relation to vulnerable people
- Carry out a suitable and sufficient risk assessment to identify risks. The new government guidance has removed the specific requirement to risk assess for Covid-19, but it will remain sensible to consider risk. A risk assessment should specifically look at vulnerable employees (pregnant workers, those who are immunosuppressed and those previously identified as clinically extremely vulnerable) for whom extra health and safety measures may be required.
- Implement measures to minimise the risks to the lowest level reasonably practicable. This is not the same as eliminating the risk altogether. Complying with government guidance including any issued by the Health and Safety Executive is powerful evidence of compliance.
Ensure the risk assessment and the control system is dynamic, that is, it is reviewed on a regular basis to identify new and evolving risks as updated guidance is issued.
The second element of causation is more problematic for employees as current evidence suggests Covid-19 spreads rapidly and there is continuing uncertainty as to its precise mode of transmission. Therefore, it is extremely difficult to pinpoint the source of infection. Employees spend on average eight hours per day at work, five days a week. They could have contracted the virus from friends or family at home or while shopping, attending leisure facilities or entertainment venues. Every day, employees are exposed to numerous potential infections outside the workplace.
The problem of an unknown source of infection has been considered by the courts before. Claimants in asbestos litigation found themselves in the impossible situation of having to prove which employer exposed them to the asbestos fibre that triggered their asbestos-related cancer or lung disease many years later. The Supreme Court decided, as science had not yet enabled precise identification, that it would be unfair as a matter of public policy to reject the claims and devised a new test of causation: claimants no longer had to establish where the offending fibre was inhaled but, rather, they had to prove the employer had materially increased the risk of harm. Unless an employer was able to demonstrate that it took sufficient steps to reduce the risk of exposure to asbestos fibres to the lowest level legally permissible, the court would conclude it had materially increased the risk of injury and was liable to compensate the claimant.
The material contribution test was adopted in asbestos litigation mainly because the risk of exposure outside the workplace was very low. Contrast this with Covid-19 where there is a high risk of non-workplace exposure.
For this reason, it seems unlikely the courts will adopt the "material contribution" test in Covid-19 workplace claims and employees will have to prove on the balance of probabilities; that is, more likely than not that the infection was contracted in the workplace. It may be possible to obtain this evidence when the employee works as a laboratory technician, nurse, doctor or other healthcare professional but is unlikely this evidence would be found outside the healthcare sector.
However, developments in the understanding of transmission and sources of infection may alter this position in time.
What might compensation look like if an employee was successful?
The extent to which a claimant suffers "an injury" as a result of contracting Covid-19 varies substantially with some victims suffering mild to moderate flu-like symptoms for a few weeks and others develop severe respiratory symptoms, long Covid or die as a result of Covid-19.
While cases leading to death are significant in the population at large, there are relatively few cases among the working-age population and the majority of those deaths are linked to the healthcare sector.
Claims involving mild to moderate symptoms lasting a few weeks will be worth a few hundred pounds. From 6 April 2022, the small claims track limit for the issue of court proceedings for personal injury will rise to £1,500. This means that the cost of proving difficult evidential issues of breach and causation will be disproportionate to the value of any potential compensation and it is unlikely such claims will be pursued.
Where the injury is more substantial and lasts longer or is permanent, a claimant could be awarded several thousand pounds in compensation but the claim will require a considerable investment upfront in terms of expert evidence to establish breach and causation. At present, the legal-costs insurance sector has little appetite to fund Covid-19 claims, which are seen as novel and high risk. Employees will have to look to their trade union to fund test cases or hope the government will introduce some form of "no fault" insurance scheme for people affected by substantial or permanent Covid-19 related conditions.
Osborne Clarke comment
As it is currently scientifically impossible to accurately pinpoint the source of a Covid-19 infection, we consider the risk of claims alleging workplace exposure by employees outside the health care sector to be low. The floodgates are not about to open just yet.
However, as the science evolves and testing techniques improve, the situation may change and the risk of claims will increase. The best method of managing and mitigating the risk is for employers to continue to produce risk assessments, ensure control measures are in place and properly enforced, and are regularly reviewed and updated in line with Health and Safety Executive and government guidance as it evolves.
About the authors
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