With the lockdown still in full force many employees are still being expected to work. With 16,060 deaths as a result of Covid-19 at the time of writing, some employees may be right to have concerns about whether or not they should be putting themselves and their loved ones at risk by continuing to work without personal protective equipment (‘PPE’). Mark Pritchard and Tony Williams explore the obligations of the employer in keeping their workers safe from coronavirus, the rights of an employee to enforce those obligations, and potential consequences for employers.
DUTIES OF EMPLOYERS
Every employer is under a general duty “to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees” (s2 of the Health and Safety at Work etc. Act 1974 (‘HSWA’)). That duty includes the “provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health”. An employer who fails to comply with this duty will be guilty of a criminal offence under s33 of the HSWA. PPE must be considered within that regulatory framework.
The HSWA is supplemented by various sets of regulations, including the Management of Health and Safety at Work Regulations 1999/3242 (‘the MOHSW Regs’). Reg 3 of the MOHSW Regs imposes a duty on every employer to make a “suitable and sufficient” assessment of risks to the health and safety of their employees to which they are exposed whilst at work.
When it comes to providing PPE, employers must ensure that “suitable personal protective equipment” is provided to employees who may be exposed to a risk to their health or safety whilst at work, “except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective” (Reg 4(1) of the Personal Protective Equipment at Work Regulations 1992/2996 (‘the PPE Regs’)).
Turning to health and care professions in particular, the Control of Substances Hazardous to Health Regulations 2002/2677 (‘the COSHH Regs’) governs PPE in relation to harmful substances, which includes micro-organisms such as coronavirus.
Reg 6 of the COSHH Regs provides that an employer “shall not carry out work which is liable to expose any employees to any substance hazardous to health” unless there has been a risk assessment and they have taken steps to mitigate that risk. Reg 7 of the COSHH Regs imposes a duty on employers to ensure “that exposure of their employees to substances hazardous to health is either prevented or, where this is not reasonably practicable, adequately controlled” by other measures including “suitable personal protective equipment”.
In relation to some industrial professions there may be more specific regulations governing the requirements of PPE, e.g. the Control of Asbestos Regulations 2012 or Control of Lead at Work Regulations 2002.
In short? Employers must carry out a risk assessment and take steps to control your risk of contracting coronavirus whilst working for them. If they cannot take steps to mitigate that risk, they must provide suitable PPE to enable you to safely carry on work. Failing to carry out a proper risk assessment and provide any, or any adequate, PPE when it is required will mean your employer has failed to comply with their legal duties.
WHAT PPE IS YOUR EMPLOYER OBLIGED TO PROVIDE?
Use of PPE under the various pieces of legislation is a last resort, as employers are expected to take all other reasonably practicable measures to prevent or control exposure to an unsafe working environment. This has included making arrangements to enable employees to work from home, or measures taken to secure social distancing in the workplace and minimise contact with the public or other members of staff.
In some jobs or workplaces this will not be reasonably practicable, and PPE should be issued if the employee is expected to carry on working. What PPE will be required is a matter of context. For those working in health and care professions, guidance has been issued by Public Health England regarding basic PPE requirements (together with a helpful visual chart showing recommended PPE).
For other workers, Health and Safety Executive has a wealth of material available on what steps employers are expected to take to ensure you are safe in the workplace during the pandemic and what constitutes adequate PPE.
Although these are recommendations, any failure to follow these recommendations without good reason is likely to constitute a failure in an employer’s duty to protect your health and safety whilst at work.
Given the financial strain on businesses during the pandemic, it may be worth remembering that it is unlawful for an employer to charge for any PPE they provide to protect your health and safety (s9 HSWA).
In the event that your employer fails or refuses to provide PPE where it is reasonably necessary, you have a choice – attend work as usual and risk your health (with the consequence that the employer will have unlawfully put you at risk) or stay at home and risk having your contract terminated.
If your contract is terminated because your employer is failing to comply with their duty to look after your health and safety and you refuse to attend work as a result, you may have a claim for constructive dismissal. Mark Pritchard explores this further here.
PROFESSIONAL REGULATORS, FITNESS TO PRACTISE AND PPE
When it comes to those working in health and care professions, in addition to straining your relationship with your employer, a lack of PPE in the workplace is likely to put you in a position where you are forced to make a professional decision about what course of action you should take.
Regulators of the health and care professions have issued issued a joint statement recognising that difficult professional decisions may need to be made in the context of the pandemic. Individual bodies provide further guidance in relation to conduct during the pandemic. The General Medical Council and the Nursing Midwifery Council in particular have confirmed that where a doctor, nurse or midwife lacks appropriate PPE, this needs to be raised with their employers, re-affirming the employer’s clear duty to their employees to ensure suitable PPE is provided.
These statements should provide some re-assurance to any professional who is able to give reasons for the judgment calls they make if their employers do not provide suitable PPE.
The pandemic and the conditions in which you are expected to work should be taken into account when deciding whether your conduct was reasonable and justified. Should your conduct or fitness to practise be called into question because of a decision you took because you were not given suitable PPE, advice and assistance is available.
HUMAN RIGHTS AND PPE
The rights protected by the Human Rights Act 1998 exist to protect the fundamental rights of individuals. The law places obligations in relation to protecting human rights on “state actors”. The Department of Health, the National Health Service, police forces and prisons would clearly fall into the category of state actors as they are run by the government. The definition of “state actor” has been widened by statute by s.73 of the Care Act 2014 to include care homes where the care or support is arranged by the government or local authority, or paid for (directly or indirectly, and in whole or in part) by the government or a local authority. This will also apply to any placements treating those detained under the Mental Health Act 1984.
Article 2 of the European Convention on Human Rights protects the right to life. The case of L.C.B. v. United Kingdom (14/1997/798/1001) made it clear there is a positive obligation for a state to “take appropriate steps to safeguard the lives of those within its jurisdiction”. The L.C.B principle was expanded in Oneryildiz v Turkey (application no. 48939/99). Where a state is aware of a risk, there is an obligation under Article 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect individuals.
When we apply the above principles, it is clear that a failure to provide adequate PPE to those working in the NHS and other key workers, when the risk is clear and obvious, is capable of amounting to a breach of Article 2. The police and prison service have a positive obligation to officers, those detained and solicitors attending interviews to take positive steps to mitigate the risk posed by Covid-19.
The consequences of breaching Article 2 are that the government are left open to claims in relation to their failure. The first type of claim that could be brought is a judicial review which would force the government into complying with their obligations under the European Convention on Human Right and Human Rights Act 1998 by means of an injunction requiring them to act. It is also possible for someone to make a claim for compensation if that claim is made within one year of the alleged breach.
One important way in which possible breaches of Article 2 are dealt with is by holding an inquest. Following the case of McCann v United Kingdom (21 ECHR 97 GC) the United Kingdom was placed under a positive obligation to undertake a fair and impartial investigation into any deaths in which Article 2 is engaged. If such a death is reported to the coroner, this should create a duty under s.1(4)b of the Coroners and Justice Act 2009 for a Senior Coroner to begin an investigation.
The state cannot continue to put lives at risk without putting adequate provision in place to protect key workers. We cannot continue to ask those who chose a career to save lives to go to work and risk losing their own. There is a clear legal obligation to act and this must be done now.
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