Employer’s duty of care during the coronavirus crisis
A look at health and safety obligations
We frequently hear the phrase that ‘we are living and working in unprecedented times’ but what does that mean for employers and employees who are having to adjust to new working arrangements during the coronavirus (COVID-19) pandemic? There can be no doubt that COVID-19 poses a significant risk to the health and safety of all persons coming into close contact with each other, or with surfaces contaminated by those who are infectious.
An employer has an overriding duty, which arises under both common law and statute, to take reasonable care of its employees’ health and safety. ‘Reasonable care’ means that an employer has to assess the potential risk; the harm it could cause an employee (and others); and the safety precautions that could be implemented to eliminate or minimise the risk to as low a level as reasonably practicable.
This is an important duty, personal to the employee, which cannot be delegated or discharged by entrusting the safety of one employee to a colleague or subcontractor.
Under the common law the duty extends, among other things, to the provision of:
- A safe place to work
- Safe work equipment
- A safe system of work and work practices
- Personal protective equipment
- Competent colleagues
The common law is supplemented by statutory and regulatory protection for employees, in particular the Health and Safety at Work etc Act 1974 (HSWA). It imposes a broad duty on every employer to ensure so far as is reasonably practicable, the health, safety and welfare at work of all its employees.
Therefore, employers are required to assess the risks associated with working conditions of employees. To do that properly requires an understanding of the current scientific opinion and how the highly infectious virus is transmitted.
The level of risk and the nature of potential transmission varies according to the type of work being undertaken. For example, health workers exposed to high doses of the virus while working with very sick patients will require rigorous control measures, including personal protective equipment, such as face-masks, disposable gloves and gowns, etc. In contrast, someone working at home is not likely to require this equipment.
An important part of the employer’s duty is to inform employees about any risks to their health and safety and any measures they can adopt to minimise or eliminate those risks.
An employer owes the same duty to take reasonable care of the health and safety of employees who are ‘lone workers’. A lone worker is an employee who works by themself without close or direct supervision.
An employer still has a duty to assess the risk, whether the employee is working in an office, factory, in a vehicle, on a home visit or working from home. They must take into account the type of work being done and for how long.
With increased access to technology, many workers are likely to be using computers, lap-tops or other equipment with screens. This equipment, when used full-time in the office or workplace, require an analysis of the workstation, the need for breaks, eye and eyesight tests and the provision of information and training. If the employee is working temporarily from home, there is no need for a formal workstation assessment. However, if the current lockdown extends much further, there may come a point where home working is considered to be long term and therefore an assessment required. In the meantime, employers would be well advised to provide information to home workers about the need for regular breaks and to avoid long spells using display equipment.
Employers should support home workers for whom there are greater risks. For example, if they are isolated with no direct supervision or anyone to help them if things go wrong. Home working can cause work-related stress and affect people’s mental health. Employers should put in place measures to maintain direct contact with home workers and share with employees an emergency point of contact so employees can get help if they need it. There is no legal requirement for employers to have a lone worker policy, however having such a policy can help support lone workers and develop a safer and healthier working culture.