25 Jun 2020

The coronavirus pandemic is likely to throw up some interesting challenges for employers and their liability insurers.

How are the courts likely to approach the novel situation where employees may seek to claim for injuries arising through exposure to COVID-19 in the workplace, and how can employers and their insurers take steps to protect themselves from a tidal wave of claims?

Duty of care and breach of duty

Employers' liability policies are drafted to offer indemnity to employers in relation to liabilities arising from the six main statutory Health and Safety Workplace Regulations. For the most part, and following the introduction of the Enterprise and Regulatory Reform Act in 2013, an employee needs to establish negligence on the part of the employer in order to prove breach of duty pursuant to those regulations.

The regulations set out the broad ambit of the duty of care owed by an employer to employees – a duty to provide a safe system of work; to provide safe work equipment; and to provide a safe place of work. In the context of COVID-19, it will be essential for employers to:

  • demonstrate 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
  • demonstrate the extent to which the system is being followed in practice by employees
  • demonstrate that this system is dynamic, in that it 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 COVID-19 in the workplace and how to mitigate its spread.

Mitigating measures

With the notable exception of clinical environments where the guidance is industry specific, the provision of PPE to employees in the workplace is not specifically advocated within HSE Guidance. Instead, the guidance suggests that employers should reduce the risks of infection in the workplace to the lowest practicable level by social distancing, promoting regular handwashing and where possible, arranging for employees to work from home. Where a particular activity requires employees to be in the workplace and they cannot be socially distanced, employers need to give thought to whether they can arrange for employees to work within a limited bubble to reduce the number of transmissions in the workplace, consider back to back rather than face to face working, staggered start and finish times, better ventilation and overall whether it is an essential task which should be undertaken at all.

With this in mind, the crucial issue for employers and their insurers is to ensure that a risk assessment has been carried out to identify the risks of transmission of COVID-19 within the workplace with a view to minimising those risks to the lowest practicable level and ensuring that this system is enforced. A claimant will find it difficult to establish breach of duty if it can be shown that appropriate control measures were in place and properly enforced.

Causation

The wider issue is one of causation and how a claimant can prove that exposure to COVID-19 occurred within the workplace as opposed to the wider community. This is made more problematic for claimants as current evidence suggests that COVID-19 spreads rapidly but has a variable and sometimes lengthy incubation period; there remains uncertainty as to its precise mode of transmission; and it appears to still be the case that it is extremely difficult to pinpoint the source of the infection.

How will the courts approach the issue of causation?

The obvious comparison is to consider the approach adopted in asbestos litigation where exposure to even a tiny amount of asbestos in the workplace can lead to the subsequent development of mesothelioma and other associated lung diseases many years later.

Claimants exposed to asbestos found themselves in the impossible position of having to prove where the single strand of asbestos which caused the onset of their mesothelioma was inhaled. The House of Lords was not prepared to leave these individuals without compensation, and so in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 adopted a test for causation which asked not that claimants should establish where the offending asbestos was inhaled, but instead whether an employer had materially increased the risk of harm to the claimant.

Whether the courts will follow a similar approach in relation to COVID-19 remains to be seen. It is arguably even more unlikely that the onset of infection from COVID-19 could ever be positively attributed to one specific source at a given time. But developments in the understanding of transmission and sources of infection may change that.

Injury and damages

The extent to which a claimant suffers "injury" as a result of contracting COVID-19 also appears to vary substantially with some victims suffering mild to moderate flu-like symptoms and some being entirely asymptomatic. Cases leading to death whilst significant in number across the population at large, remain statistically quite low amongst the working age population.

The range of symptoms experienced also varies significantly with sufferers reporting in addition to the standard cough and high temperature, symptoms affecting the senses - a loss of sight, taste and smell and chronic and widespread pain. Such symptoms may lead defendants to adopt standard arguments relating to exacerbation and acceleration of underlying issues as being medically causative of any alleged long term, chronic symptoms.

As a result of many sufferers reporting only mild or moderate symptoms of only a few weeks in duration, the value of the majority of claims is likely to be limited, meaning that the cost of proving difficult evidential issues of breach and causation overall may not be proportionate to the value of the claim. In serious cases, defendants may turn to arguments more usually employed in the investigation of fundamental dishonesty such as online social media surveillance to establish whether a claimant has been exaggerating or falsifying the extent of their symptoms.

Looking ahead

Overall, employers and insurers are braced for a wave of litigation which may be brought for alleged exposure to the virus in the workplace. Yet on closer examination, the difficulties in proving breach of duty, causation and damage all conspire to suggest that the actual number of claims pursued in practice may be far lower than anticipated.

In many cases, claims will necessarily be directed against the NHS and other public healthcare providers, and whether there is the public appetite to pursue such claims – and the judicial appetite to allow them - remains to be seen. With COVID-19 looking to become part of the "new normal" in our society, only time will tell.