In June last year, we published an article on managing the risk of injury claims in light of COVID-19 and the enhanced workplace practices for employers in the public transport industry. We are now nearly 12 months on from the start of the pandemic and, while the majority of the population is still living under tight restrictions, the vaccine roll-out has provided us with the very much needed light at the end of the tunnel. Transport operators are now able to begin to plan for the future with greater certainty and work on a road map back to full operability.
While this is, of course, very positive and welcome news, it does raise new and difficult questions such as, can transport operators insist on staff getting the vaccine in order to work? What are the options available to transport operators if staff refuse to get the vaccine? What is clear, is that transport operators must give this topic careful consideration in order to mitigate the risk of facing vaccine related claims, as well as personal injury claims.
It is important that transport operators remain vigilant and continue to follow the Government's advice and guidance on workplace practices to minimise the risk of potential claims from employers. Over the last 12 months, there has been a steady trickle of claims being made against employers for breaches of COVID-19 rules. Research conducted by UK insurance brokers predicts as much as a 40% rise in new claims by Spring 2021, which they say is directly linked to litigation arising as a result of COVID-19. It is possible, therefore, that this steady trickle could gain momentum and cause real issues for employers across the UK.
This article focuses on the likelihood of a new wave of COVID-19 litigation, the types of claims that transport operators are most likely to face, and what they can do to better protect themselves against such litigation.
A steady trickle
The latest figures published by the Government show an increase in single claims in the employment tribunals by 13% for Q3 of 2020 when compared with Q3 of 2019, most likely due to the rise in unemployment and changes to working conditions as a result of the COVID-19 pandemic. The civil courts also saw an increase in personal injury claims of 13% in Q3 on Q2 2020, although cases still remain below pre-COVID-19 levels.
While the number of cases registered with the Compensation Recovery Unit is low – only 30 cases had been registered as of 20 November 2020 – the number of occupational COVID-19 notifications made under RIDDOR has been increasing week-on-week. According to the HSE, during the week 6 – 14 January 2021, it received 3,934 complaints about safety issues and enforcement action was taken in 81 cases. This is only likely to increase, as the Government is coming under increasing pressure from unions to step up enforcement against employers in breach of COVID-19 rules.
Notwithstanding the above, employees are likely to face challenges when bringing personal injury actions against employers as a result of contracting COVID-19. The difficulties in proving breach of duty and, in particular, causation and damage all conspire to suggest that, generally, the actual number of claims may be far lower than anticipated. However, employees that contract the virus while working in high-risk sectors, like public transport, may be able to overcome these difficulties as the chain of causation may be easier to establish.
Types of claims
We consider the most likely claims that transport operators will face are:
- Breach of health and safety rules in respect of workplace risk assessments
A failure to conduct proper risk assessments and, as a result, a failure to implement appropriate measures, may lead to an increased risk of exposure to COVID-19 in the workplace. While this type of claim will predominantly arise from employees working at a specified location, for example, at a transport hub, transport operators may also see such claims arising from employees working on passenger buses, where appropriate measures have not been implemented.
- Breach of health and safety rules in respect of home working conditions
Where employees who would ordinarily work in an office, for example support and customer service employees, are now working from home, the difficulties arising out of conducting Display Screen Equipment and workstation assessments remotely may expose transport operators to personal injury claims where employees have suffered injuries as a result of their home working set up.
- Personal injury actions in respect of mental health issues arising out of working on the front line and/or from home
The mental well-being of employees is a very important topic, now more than ever before. Having lived under restrictions for almost 12 months, which has prevented many people from seeing their friends and family, the pandemic has taken a huge toll on people's mental health. In terms of mental health issues borne out of working on the front line, transport operators should be mindful of the anxiety that some employees may feel about working in areas that have a relatively high level of exposure to the virus. Failure to do so may result in claims for psychiatric injury. In respect of working from home, feelings of isolation and exclusion, coupled with the fact that employees now "live at work", mean that home working also has the potential to breed anxiety. While spotting signs of mental stress is more difficult remotely, employers are strongly encouraged to reach out to employees regularly in order to be able to offer appropriate support.
With calls from MPs for Long COVID to be classed as an "occupational disease", entitling those infected during their work on the front line to compensation, Long COVID is an emerging issue for employers, particularly those in high-risk sectors, such as transport operators.
Long COVID sufferers may experience symptoms such as excessive fatigue, breathlessness, insomnia and brain fog. The median age of those suffering with Long COVID is 45 and is, therefore, of working age. This may present staff resourcing problems for transport operators, should large numbers of employees require extended periods of leave due to symptoms.
Transport operators are encouraged to be patient with and sympathetic to employees who are suffering with Long COVID. This could involve keeping in regular contact with employees with Long COVID, continuing to offer flexible working arrangements and/or periods of leave to ensure that employees are able to work effectively and supported. Transport operators that take practical steps such as these may reduce the likelihood of facing potential actions from employees.
Impact of COVID-19 vaccine
The roll-out of the COVID-19 vaccine is likely to have a profound impact on all aspects of our lives, as restrictions start to ease and "normality" returns. As people start to return to offices and travel more freely for leisure, transport operators are likely to experience a large surge in demand for their services.
There are already reports of employers implementing "no jab, no job" policies, however, we would advise employers to think very carefully about adopting this route. The vaccine is not mandatory, and the Government has ruled out making it so. Therefore, employers that insist that employees get the vaccine in order to carry out their jobs risk facing potential action, for example, discrimination claims on the ground of religion where employees choose not to get the vaccine for religious reasons.
Having said that, a distinction should be drawn between sectors that are high-risk and those that are not. It may be appropriate for employers in high-risk sectors, like transport operators, to encourage employees to get the vaccine. If any employees do not want to the vaccine, transport operators may then be obliged to find these employees non-customer facing roles, which have a lower risk of exposure.
Clearly, it is a highly sensitive area and transport operators are strongly encouraged to give careful consideration to the topic. Transport operators should communicate with their employees on an open and transparent basis, and support equally those employees that do and do not want to get the vaccine.
The integral role that transport operators play in society has become even more profound during the pandemic, as key workers have relied on their services to get to and from work. Transport operators will continue to play an essential role as the UK edges towards "normality" and communities begin to reopen. However, it is important that in doing so, transport operators maintain the highest standards in respect of employee and passenger welfare and safety in order to minimise the risk of potential action. Given the nature of public transport, transport operators find themselves in the higher-risk category of employers, which increases the possibility of facing potential claims arising out of COVID-19.
It is clear that COVID-19 is going to continue to dominate headlines for some time to come. While the vaccine offers hope for the future, it is important not to lose sight of the present.
Article contributed to by Sophie Lowe.