18 Jun 2020

The UK Government has underlined the central role transport operators will have in the reopening of the UK economy as COVID-19 lockdown restrictions are eased by publishing detailed guidance in the form of 'Coronavirus (COVID-19): Safer Transport Guidance for Operators'. But it is clear that the process of returning to normality will be a gradual one. There are also risks for transport operators including potential claims from employees and passengers as a result of injuries allegedly caused by exposure to COVID-19. We examine the guidance and consider what transport operators should do to manage the personal injury liability risks.

New guidance for new work procedures

Transport operators are required to adopt new work procedures to provide safer services and workplaces for passengers and employees alike.

The Guidance has been published to assist with the implementation of effective transport safety procedures. It outlines measures to assess and address the risk of COVID-19 in the transport sector across England and transport operators are required to translate the principles and examples within the Guidance into specific actions.

It is no surprise that the crux of the Guidance is to ensure that employers reduce the risk of injury, loss or damage to employees or members of the public to the lowest reasonably practicable level. This is of vital importance as COVID-19 will likely give rise to personal injury claims from passengers and employees alike who suffer injury, loss or damage through being exposed to the virus as a result of the alleged acts or omissions of transport operators.

Managing the risk of injury

Practical considerations for all transport operators will include the following:

  • Carrying out appropriate COVID-19 risk assessments to identify which actions or preventative measures need to be implemented (for more on this, see below)
  • Requesting employees to agree to, and sign off, a simple health checklist admitting to and recording all known medical conditions. This will enable transport providers to identify and screen those employees who would be at an increased risk of contracting the virus while working.
  • Providing suitable Personal Protective Equipment (PPE) in the form of gloves, masks and, if the risk is particularly high, visors and aprons (for more on this, see below)
  • Ensuring employees receive clear instructions and thorough training on COVID-19 and how to minimise the risk of infection. This should include instruction on the use of PPE
  • Highlighting any specific hazards to employees prior to entering the workplace
  • Reviewing and adapting disclaimers appended outside the workplace to include any specific personal injury risks associated with entering the workplace, and any rules of being there
  • Documenting steps taken to mitigate risks, for example by ensuring cleaning records or other records of mitigating steps are kept up to date.

We consider risk assessments and PPE in more detail below. In addition, we also examine how transport operators can manage the risks arising from home working and queues and passenger flows as well as the vital role of thorough cleaning.

Risk assessments

A key theme within the Guidance is to ensure that transport operators undertake COVID-19 specific risk assessments in order to mitigate against the risk of potential liability claims. It is vital that transport operators share the results of their risk assessments with their workforce and document any training provided in relation to risk assessments.

For transport operators who employ both drivers and others within an office environment, it is important that such risk assessments:

  • Identify who should go to work, having regard to the minimum number of 'essential workers' required to operate safely and effectively and which employees can properly work from home
  • Protect higher risk employees. Ideally they should work from home or, if this is not possible, offer them the safest available on-site roles with an acceptable level of risk
  • Implement clear and simple approaches to social distancing for employees and passengers, having regard to interactions between both and the manner in which passengers will board and alight from transport vehicles
  • Where social distancing guidelines cannot be followed, other steps to mitigate the risks should be considered such as:
    • Establishing one-way flow through transport vehicles and outlining social distancing spacing using floor tape within stations and workspaces (see below)
    • Separating workspaces such as ticket collection booths and transport information points 2 metres apart from one another where possible
    • Utilising screens and barriers (perhaps in favour of bench-style seating) to disperse passengers and protect employees when interacting with passengers
    • Eliminating face-to-face seating within stations and transport vehicles and reducing the occupancy of spaces where groups interact; and
    • Using announcements in transport hubs and/or on social media to reinforce social distancing and awareness of good hygiene, such as washing hands thoroughly before and after travel
  • Whether it is possible to decrease face-to-face contact between employees, for example by staggering arrival and departure times at work to reduce crowding and reducing queues by having more entry points to worksites
  • Whether it is necessary to clean workplaces and other locations that have been closed or partially operated before resuming full operation.
  • Whether hand sanitiser can be provided and frequent hand washing promoted
  • Ensuring that cleaning procedures are rigorous and appropriately documented.

Home working

It is important to remember that transport operators retain the same health and safety responsibilities for home workers as they do for any other workers, whether staff are working from home permanently or temporarily. Regular contact and supervision with home workers is essential and additional risk assessments should also be considered in order to review whether additional control measures should be put in place to protect staff.

For home working arrangements, the Display Screen Equipment Regulations will also continue to apply and in the longer term home workstation assessments should be carried out to minimise the risks of undertaking Display Screen Work, and to aim to meet specialist Display Screen Equipment needs where it is appropriate to do so.

Management of queues and passenger flows

Transport operators will be required to effectively manage queues and passenger flows throughout the transport network. The Government's Guidance advises that this can be achieved by adhering to the following procedures:

  • Displaying messages, signs and making announcements to discourage non-essential trips and help prepare passengers for their journeys and know what to expect
  • Considering whether queues can be moved to alternative locations with more space for safe queues and liaising with other relevant organisation to safely manage queues and any impact on public spaces
  • Identifying transport interchanges which might become too crowded and considering a full range of operational responses available to deal with passenger congestion
  • Undertaking joint planning with other transport organisations at transport interchanges to ensure aligned approaches and identifying areas where there is increased risk of congestion or crowding
  • Adopting a one-way flow through vehicles should also be considered along with using floor tape, signs or paint in passenger areas to help people keep 2 metres apart, where appropriate.

Cleaning and hygiene procedures

Transport operators will also need to adopt more thorough cleaning and hygiene procedures to keep modes of transport clean thus preventing the transmission of COVID-19 as a result of touching contaminated surfaces. Such procedures may include the following:

  • Ensuring that customers who use public transport systems are clearly not displaying signs of illness at the point of boarding and to advise them not to travel if they are obviously unwell
  • Identifying higher risk areas such as areas that are touched more regularly by passengers (for example buttons to open doors and hand rails)
  • Using announcements in transport hubs and/ or on social media to reinforce key messages to passengers, such as washing hands before and after travel, and what to do if unwell
  • Encouraging employees to wash hands before boarding transport vehicles and supplying sufficient quantities of sanitation products to enable employees to regularly clean their hands
  • Ensuring that touchpoints within stations, transport vehicles and staff facilities are regularly and thoroughly cleaned in line with published guidance.

Personal protective equipment

It is now mandatory for passengers to wear face coverings when using public transport in England[1]. Transport operators will also be encouraged to ensure employees are provided with and use face coverings where appropriate for their role.

The thought behind introducing this new measure is that passengers using public transport are more likely to be in enclosed spaces for a longer period of time. This can lead to social distancing procedures being more difficult to follow for passengers and therefore result in a greater risk of the virus spreading.

This measure also applies to tram, ferry and aircraft passengers.

In addition, PPE should be provided to specific employees if required and transport operators should support employees and passengers that choose to wear face coverings. This may include:

  • Encouraging thorough hand washing before face coverings are worn.
  • Advising employees against touching their face or face covering during shifts to avoid contamination.
  • Recommending that face coverings be replaced regularly and washed daily.

Passengers are also advised to wear face coverings while using public transport.

Comment

It is only a matter of time before transport operators are presented with claims being pursued by employees or members of the public as a result of injuries, be that physical or psychological, allegedly caused by COVID-19.

Given the prevalence of COVID-19, potential claimants will undoubtedly face an onerous task in establishing causation. It is also still too early to accurately predict whether many of these claims will have merit.

However, transport operators who are able to prove they have correctly interpreted and applied relevant Government guidance should be in a strong position to defend claims from both employees and the general public. In doing so, transport operators should pay close attention to how Government guidance should be applied to the distinct characteristics of their businesses and workforce.

It is also important to note that employees have a duty to take reasonable care for their own health and safety, as well as the welfare of their fellow colleagues and the general public. In situations where a claimant has failed to meet this duty (whether as a result of reckless actions or a disregard of their employer's procedures), a finding of contributory negligence will be more probable.

The COVID-19 pandemic is having and will continue to have a profound impact on how transport providers operate, and we will continue to monitor developments to assist clients in reducing risk and claims in this area.

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[1] The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020