Stephen Jackson: Time for action in the battle for hearts and minds

This is an article by Stephen Jackson, solicitor principal at Jackson Osborne Employment Lawyers, here writing in his capacity as Editor for the lockdown website laworfiction.com, arguing that health and safety risk assessments present the best opportunity to resist social distancing.

Fiction:

Health and safety obligations require social distancing measures to be imposed in the workplace and businesses generally.

Law:

Guidance is generally unenforceable but, as a matter of legal obligation, employers and controllers of premises are required to undertake evidence-based health and safety risk assessments. If there is no evidence of a significant danger, no mitigation is required.

This is a reasonably long article covering a few important issues. In summary, in respect of Covid-19:

• fear of personal injury claims is not a good reason to enforce social distancing
• Employment Tribunal claims are a good reason to worry, but can be avoided
• risk assessments are biased and are putting businesses at risk
• it is not, in law, a ‘serious and imminent danger’
• risk assessments, conducted without bias, can guard against social distancing and wearing of masks

Bullying business with risk assessments

Health and safety risk assessments are being used to bully businesses into following government guidance on social distancing and other measures. There are two separate species of claim which employers and businesses feel threatened by:

• Covid-19 personal injury claims
• Statutory employment claims e.g. health and safety claims, including automatically unfair dismissal, under Employment Rights Act 1996 sections 44 and 100.

As everyone knows, threats and bullies often go away if you stand up to them.

Covid-19 personal injury claims

Covid-19 personal injury claims are of the sort: “I contracted Covid-19 because of your failure to enforce social distancing and you are responsible for, and must pay me compensation for, my illness/death from Covid-19.”

In 99% of cases this will be an extremely difficult claim to succeed with.

There are various legal hurdles but one is most obvious: it will be next to impossible for a claimant to prove that they contracted the virus from the workplace as opposed to from their family or friends or out shopping.  Covid-19 is not like industrial injuries, such as asbestosis or vibration white finger, where the disease requires unusual or prolonged exposure to materials or practices only found in the workplace.

Even if contraction from a particular place or person could be established, the claimant has to show they were owed a duty of care. That is not difficult for an employee against an employer, but this is not a ‘civic duty’ whereby any member of the UK population could automatically claim compensation. There may be floodgates arguments against making businesses liable for any illness that could be linked indirectly back to them through their employees but, in any event, at this stage the first hurdle must be jumped twice: the claimant must prove that they got the virus from the employee and then prove that the employee got the virus from the workplace.

Proving any of the above becomes many times more difficult if the theory of transmission by asymptomatic carriers is correct.

Statutory employment claims

Statutory employment claims are of the sort: “I’m not coming into work while it isn’t safe but if you don’t pay me or if you dismiss me, then I’ll sue for unfair dismissal’.

Employees are being advised to go unions or to the Health and Safety Executive if they perceive that sufficient social distancing measures aren’t being observed in the workplace and are being actively encouraged that they may refuse to attend work.

When the lawyers get involved, the legal questions include whether the employee “reasonably believed” that they or others would face circumstances of “serious and imminent danger” from Covid-19 in the workplace. If so, the Employment Rights Act 1996 may protect them from dismissal or any other detriment, such as losing pay. This particular protection under applies to all employees, regardless of length of service, and offers the attraction of potentially unlimited compensation.

Given government messaging and mainstream news, any employee may very reasonably come to believe that they face a “serious and imminent danger” from Covid-19 in the workplace. There will be many who leave work expecting to be protected from dismissal or from having no pay if they walk out or refuse to attend work.

As a result, employers, small and large, who do not prepare to respond to such concerns may find themselves facing complicated and expensive Employment Tribunal dispute.  They need to appreciate, and appreciate now, that at the heart of many disputes the employee will often point to the employer’s Covid-19 risk assessment, alleging it is deficient or that it has not been followed and enforced.

This is a battle where employers and businesses may find a chink in the government’s armour.

Assessing danger, not transmission

An employer who prepares a risk assessment based on evidence will be in a strong position to avoid and defend employment claims.

By contrast, a risk assessment that is not evidence based, but which assumes that the mere presence of the Covid-19 virus in the UK presents a very significant risk of danger to its employees sets the employer up to fail, to lose control over their staff and lose subsequent Employment Tribunal complaints.

It is essential to appreciate that the health and safety assessment required is not of the risk of transmission of the Covid-19 virus.  The assessment required is of the risk of significant danger. Those are fundamentally different issues. By way of illustration, risk of transmission of a common cold or flu virus may be high, but the risk of significant danger to the staff is extremely small.

The HSE risk assessment is biased and flawed

The Covid-19 risk assessment promoted by the government and Health and Safety Executive (HSE) is, fundamentally, the wrong assessment. Taking the following extract, the HSE template assessment fails to answer its own key question: “Who might be harmed and how?”

The first column in the table identifies the alleged ‘hazard’. The second column answers ‘who’ but not ‘how’. There is an assumption of harm from the hazard, but the assessment fails to address what, how serious, or how likely that harm is.

The flaw in the assessment is startlingly obvious from the hazard identified of ‘mental health and wellbeing affected through isolation’ as shown below:

Again, the assessment fails to address what, how serious, or how likely that harm is. The controls offered in the third column, however, suggest that no question is asked of whether isolation is justified in the first place.

There is, accordingly, no consideration of whether the risk of dangers from isolation may be rather greater than risk of danger from contracting or spreading covid-19. No attention is paid to balance, or proportionality, when assessing dangers of the hazard alleged against the further dangers arising from control measures suggested. The HSE assessment is biased. It is rigged from the start.

A balanced risk assessment

In a “suitable and sufficient” risk assessment, using the regulatory language, an employer is entitled to have regard to the harm that may be caused by the measures it takes. These may include, for example, the physical and mental well-being of its staff arising from isolation, from redundancy or reduced pay, from job insecurity, from working in an environment of induced fear, and for the effects of all of these things on the employees’ families.

The assessment may also have regard to likely consequences in the long term and the interests of the company’s employees. In fact, directors of any company have a general duty under the Companies Act 2006, section 172, to have regard to these, among other matters.

This is not to say Covid-19 does not present some risk of danger to consider or address. As for the extent of that risk, however, an employer should make reasonable enquiries as to current knowledge of risks and dangers.

In practice, employers often rely on health and safety consultants to do this this for them. They and the employers may be quite reasonably entitled, for example, to consider it better to rely on analysis of available data from sources such as the Office for National Statistics or the NHS, i.e. data-based evidence, rather than predictions from models that have been subject to serious and legitimate criticism.

Note should of course be taken of any published guidance from the government or HSE, and the headline death and Covid-19 case statistics promoted in daily news. Indeed, an employer needs to consider carefully how it brings its workforce with it and to accept that the workplace is not dangerous.

Serious and imminent danger

It is not necessary to accept that Covid-19 presents a ‘serious and imminent danger’.

Listen out for this phrase being bandied about as justification for social distancing guidance and masks as if it means something. Well it does mean something, but it does not necessarily mean Covid-19.

It is phrase from The Management of Health and Safety at Work Regulations 1999, regulation 8, lifted directly from its parent European legislation. The regulation is specific. It requires employers to establish appropriate procedures that require its employees, save in exceptional cases, to stop work and not to resume it where there is a serious and imminent danger, and immediately to proceed to a place of safety, if that danger is unavoidable.

No case is ‘exceptional’ if it carries on for several months. If Covid-19 uninhibited presents a serious and imminent danger, is it really argued that standing at a distance of one or two metres, or wearing a mask, is effective to avoid that danger? Perhaps the risk is reduced, but it is difficult to accept the danger has been avoided.

Either every business is required to shut down their premises completely and send their workers to a place of safety (wherever that may be) or Covid-19 does not by itself constitute a ‘serious and imminent danger’. We can’t have it both ways.

Defending statutory employment claims

It should be a given that an employer wishes to keep their workforce safe. Thereafter, a debate about the levels of risk of danger from Covid-19 does not have to be settled today. The employer may consult with its employees when preparing its assessment but, ultimately, it is the employer’s assessment that counts.

Employers do not have to prove their assessment was correct and the employee was wrong. Employers need only show they made a reasonable assessment and that they communicated this to the employee.

So, take an employee complaining to her employer “If you won’t insist on masks being worn and everyone maintaining social distancing in the workplace, then I’m walking out now.”

With a suitable and sufficient risk assessment to hand, the employer can be ready to respond with a script along these lines:

• Here is our risk assessment
• Here is our evidence
• Our assessment is that the workplace is safe
• Let us explain that further to help you understand

And continuing if the employee is not persuaded:

• If you choose to believe that there is a serious and imminent danger despite our assessment, that is your choice.
• If you choose not to come into work, you will not be paid.
• If you choose to remain away from work, it may become necessary to consider terminating your employment.

Where the employee has an underlying health condition, the issue is likely to be pursued as a disability discrimination complaint as well. There will also be cases where an employee alleges they are victimised because they’ve spoken up about health and safety measures and whistleblowing complaints are pursued. Such complaints can be dealt with straight forwardly in a similar fashion. Nevertheless, for employment lawyers, the government has created the perfect storm.

Time for action

On 4^th July, in England, the government revoked the lockdown restrictions in almost their entirety and replaced them with a “No. 2” set by the same title, The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020.  Those regulations leave the guidance largely unsupported by any legal force. Government expectation, and the reality, seems to be that risk assessments galore will be a sufficiently effective tool to ensure its guidance is implemented.

It is hoped that this article may give some ideas as to how the government guidance can and should, legitimately and with a sense of civic duty, often be rejected. (In Wales, the situation is more complicated because social distancing requirements and need to ‘have regard to’ Welsh Government guidance, has been given the force of law. Nevertheless, most of the above is relevant to Wales also.)

Much is written and tweeted about as to the evidence as to whether Covid-19 does or does not present a real danger, but one wonders if, whichever side of the fence you sit, echo chambers are now preaching to the converted without much wider impact on the wider population. The risk assessment gives perhaps the best real opportunity for business owners to speak directly to the wider population, explaining the evidence to their staff and bypassing the mainstream media. This is a battle for hearts and minds and action, of one sort or another, needs to be taken in the workplace.

Do your bit

There is certainly opportunity for someone sufficiently interested in the evidence around Covid-19, and the extent to which it does or doesn’t present risk of danger, to put together a dossier of evidence that businesses could rely upon in their risk assessments.  Please get in touch if you are interested in doing this.

If you found the above interesting, please support by following @laworfiction on twitter where there are also links to many shorter posts on the www.laworfiction.com website.

• Health and Safety at Work etc. Act 1974
• The Management of Health and Safety at Work Regulations 1999
• The Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, schedule 2

Warning and legal disclaimer: Law and circumstances can change very quickly.  The authors do not condone or encourage breaching the law and any opinions expressed above do not constitute legal advice or gives rise to a solicitor/client relationship. This article is subject to the disclaimer published on the laworfiction.com website.

  

© Law or Fiction Ltd, 10 July 2020