Please Note – Content is Under Review
As we are going through a severe pandemic, there are a number of legal issues that have come to the forefront as a result of the pandemic. We discussed a few other matters such as the impact of Covid-19 (Coronavirus) on contracts, which will keep law professionals occupied for a while. Another legal area that would be keenly discussed, and researched, is the employers requirement to protect essential workers during this period.
There are growing concerns about the lack of personal protective equipment (PPE) being provided to the NHS staff while they are treating patients who have contracted the Covid-19 (Coronavirus). A number of health professionals have unfortunately passed away because of a lack of PPE. Does this amount to employer negligence is the question we will look to answer in this post.
What does the law say about health and safety at work?
According to the Health and Safety at Work Act 1974 (HASAWA), every employer is required to ensure that all employees’ health, safety and welfare at work is adequately looked after. There are provisions outlined in the act which we have quoted verbatim below.
(2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular—
a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;
d) so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;
e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
Clauses 2c and 2e are relevant to the situation we are going through. In general situations, an employer would be required to make adequate provisions which include informing, training and providing the relevant facilities that include protective equipment.
The more appropriate The Control of Substances Hazardous to Health Regulations (COSHH) 2002
Under the Control of Substances Hazardous Health 2002 (COSHH) regulations, it is the employers responsibility to assess and reduce the risks from exposure to biological hazards. Employers need to identify individuals who may be harmed by a biological agent through risk assessment and identify how they may be exposed.
Read the COSHH legislation in full here.
There have been guidelines which have been released by the government which outline the use of PPE. These guidelines are detailed and outline the use of PPE to protect employers. The guidelines can be read below.
COVID-19 personal protective equipment (PPE)
A noteworthy link to read through – HSE – Fit testing face masks to avoid transmission during the coronavirus outbreak
Is the lack of PPE, training or implementation employer negligence during the Covid-19 (coronavirus) pandemic?
As it is an employer’s duty to keep their employees safe, they should be provided with the necessary PPE during work. There are other conditions which need to be met by the employer. We list them below.
- An employer must ensure that the PPE is properly assessed before use by employees
- The PPE is stored and maintained properly for employees
- Instructions should be provided to employees on how to use the PPE correctly and employee must be supervised so they are following correct instructions
- If there are multiple PPEs that need to be used, they must be compatible with each other
If any of the above requirements are not met, there is a clear case of employer negligence. However, if an employee contracted Covid-19 (coronavirus) as a result of inadequate PPE, there will be a need to investigate and identify negligence. This can be a complex and often time consuming part of negligence cases.
What about the shortage of PPE in the UK, how does that affect a negligence claim
That is an interesting question, which cannot be answered in full as of right now. Negligence can be passed onto a higher authority, but the government can restrict the ability to bring about a claim against an entity. This is an area we will continue to discuss and update as and when we have further details made available.
Although pandemics have occurred before, a globalised world and increased connectivity has made the matter a lot more complex and difficult to handle. There are a lot of issues that are arising and will become clearer as we navigate through this difficult period.
Such legal matter are complex and if you are thinking of seeking legal advice, you should speak to us on 0207 790 7311 or email contact@freemanharris.co.uk.