COVID-19: Government easements for businesses and employer liability considerations

Employers will generally owe a duty to take reasonable care for the safety of their employees. This duty may arise from the employment contract, tort, or by statute (although employees tend to rely on tortious remedies to avoid the complication of implied terms under contract). The generally applicable, and non-delegable, common law general duty was helpfully articulated by Lord Maugham³ as follows:

“there was a duty on the employer to take reasonable care, and to use reasonable skill, first, to provide and maintain proper machinery, plant, appliance and works; secondly, to select a properly skilled person to manage and superintend the business, and thirdly, to provide a proper system of working.”

Similarly, Scott LJ⁴ states:

“the three main duties are: (1) to provide proper premises in which, and proper plant and appliances by means of which, the workman’s duty is to be performed; (2) to maintain premises, plant and apparatus in the proper condition; (3) to establish and enforce a proper system of working.”

Although the general duty can be summarised into plant, premises, staff and systems of work, precedent indicates that it is not necessarily confined to these areas and may include a duty to warn employees of the relevant risks of employment and to look after any employee who falls sick at work.⁵

Employers will also owe duties to employees pursuant to the Health and Safety at Work Act 1974 (“H&S Act”). This includes general safety duties under ss. 2-6 which, at first instance, at least appear to overlap with the substance of the common law duty of care. Plainly put, however, there is no simple relationship between the general safety duties and the common law duty,⁶ although it is clear that they require a different standard.

The Enterprise and Regulatory Reform Act 2013⁷ has amended the H&S Act such that employees sustaining injury after 1 October 2013 will not be able to bring a private cause of action on the sole basis that there has a been a breach of the strict liability statutory duties set out in the H&S Act. Therefore, a breach of the general duties will not in and of itself give rise to civil liability but may expose employers to risk of enforcement action or criminal prosecution (although criminal breaches may well be persuasive evidence that there has also been a failure to discharge the common law duty). Note, however, that employers in certain sectors may be caught by other statutory regimes which impose strict or quasi-strict liabilities, and for which the express ability to bring a civil claim for such statutory breach remains in effect.⁸

In circumstances where the Government has required employers to make reasonable efforts to enable working from home, employers may still owe certain duties to its employees in that context: for example, it must ensure that that the risks faced by employees, at home or otherwise, are assessed⁹ and that proper display screen equipment is provided to reduce risk.¹⁰

Following the 2013 amendment to the H&S Act, and save for where a strict liability statutory regime in itself gives rise to a direct cause of action for a civil claim (see examples in footnote [8]) , all employees, or dependents, bringing claims will require proof of the employer’s breach of duty. The requirement to take “reasonable” care implies that the relevant standard will be subject to change over time. To this end, the experience of an unprecedented pandemic is likely to have considerable influence over the scope of the duty, particularly for employers under significant pressures due to the exigencies of health, social and acute care. Where risk or likelihood of harm seems high, the utility and importance of work undertaken will be a relevant consideration to the courts.¹¹ At a minimum, employers should therefore ensure that they are compliant with evolving government guidance and emergency legislation, but should not hesitate to a take a common sense approach where guidance is confused or inconsistent (e.g. wearing of masks). Swanwick J¹² stated the following:

“…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or new knowledge it is clearly bad; but, where there is developing knowledge, he must keep abreast of it and not be too slow to apply it…”

As a basic principle, employees will only be entitled to recover damages for personal injury caused by the employer’s breach of duty. Generally, a “but for” test will be applied such that a court will ask, ‘but for’ the employer’s alleged wrongful conduct or omission, would the employee have suffered the harm and loss under question?

The “but for” test has presented problems in cases where the genesis of the disease and its aetiology is complex. Whilst the precise cause of COVID-19 is understood to be coronavirus (SARS CoV 2), evidence relating to exposure pathways is unlikely to be clear. The complexities, in such cases, may render the ‘but for’ test impossible to meet. Employees may alternatively succeed by arguing that the employer’s breach made a material contribution to the injury sustained.  The case law in this area is highly fact specific and no distinct and separate rule of causation can be distilled.

Causation is likely to constitute the most difficult hurdle for employees bringing claims. This is because there is still uncertainty about the extent to which infection dose, as opposed to viral load, interacts with disease outcomes. For example, a preliminary study of patients hospitalised in China has found a strong association between disease severity and the amount of virus present in the nose,¹³ although still insufficient to connect initial exposure dose to disease outcomes. Expert evidence from epidemiologists and statisticians may elect to generate and adduce metrics such as odds ratios which quantify strength of associations (but, considerable care should be taken when using statistics to establish causation.)¹⁴

Contributory negligence means any act or omission by the employee which constitutes a failure to take care of his own safety and which materially contributes to the damage caused.¹⁵ It is difficult to conceive, in a general sense, how this defence will be raised by employers as it will be highly specific to the facts. However, in the present circumstances of the pandemic, there may be greater scope for advancing allegations of contributory negligence where employees are working at home as opposed to on the premises of the employer, or perhaps where the employee is travelling to work in a manner prohibited by his employer’s policy (these circumstances could also be used by the employer to argue that a breach of duty has not arisen in the first place). The relevant test will be whether the employee can objectively foresee that his conduct may expose him to injury even if he may not foresee the precise manner in which the injury will occur.  

On 18 May 2020 the Government guidance on symptoms added the loss of the senses of taste and smell as one of the key symptoms of the disease. This is indicative of the inherent difficulty in identifying a concordant symptom profile to COVID-19. Indeed, early studies suggest that up to 78% of people with COVID-19 are asymptomatic.¹⁶ This difficulty is compounded by the existence of comorbidities and the varying degrees of injury associated with the disease. Some injury will be trivial or unmeasurable whilst others will be fatal. A further aspect of causation is whether, despite the employer causing or materially contributing to the injury, it was of such a low level that it could not constitute a compensable injury. There is authority from the House of Lords which suggests that where injury is de minimus such that the claimant is not worse off, physically or economically, there will be no damage or indeed a cause of action.¹⁷ A de minimus threshold may need to be set for COVID-19 claims, but as always, it is likely to turn on the evidence in each case.

Employers may also wish to advance an act of nature or an inevitable accident defence to eclipse its wrongdoing as the effective cause of damage suffered by the employee. This may work in circumstances where it is successfully argued that COVID-19 was not avoidable by any such precaution as a reasonable man, doing such an act, could take. In ordinary terms, the defence is effectively a separate way of pleading that there was no prima facie case of fault in circumstances where the liability is not strict.

Finally, in years to come the limitation period will be of interest to employers. In the context of actions for personal injury and death, limitation will be three years running from the date that the cause of action accrues or from the date of the employee’s relevant ‘knowledge’, whichever is later. The employee’s date of knowledge will be of note in COVID-19 related cases in that, in contrast to other complex industrial diseases, actual or constructive knowledge will be comparatively immediate. Accordingly, there may be greater scope for arguments that claims are time barred.¹⁸

Employers should take extra care to keep abreast of Government guidance and should not delay in implementing any relevant recommendations applying to its workforce, to the extent possible. Similarly, in the current pandemic or otherwise, employers should ensure that they observe their subsisting and continuing duties and obligations owed to employees, notwithstanding any economic pressures that may apply in returning their business to full operations.