Employers liability and Coronavirus.
In this advice we shall attempt to shed some light on the potential for employer and public liability following the recent Covid 19 outbreak.
Current Legislation and Brexit Ramifications.
Several references shall be made to European Union legislation in this advice. The reader should be aware that such legislation is still law in the UK and will remain so for at least a further 12 months. Further, it is widely held by all concerned parties, both legal and political, that the vast majority of existing EU legislation currently applicable in the UK, will be incorporated into new UK law, once the absolute terms of UK withdrawal from the EU are finalised.
Sources of Health and Safety Law and Covid 19.
The main sources of health and safety law in England & Wales are the Common Law, Statute and European Legislation.
Much of the common law regarding health and safety as it relates to the individual employee can be found in an employer’s implied duty of care.
The major consolidating domestic legislation here, is the Health and Safety at Work Act 1974 (HSWA). This legislation has been strengthened by input from the EU, namely directives originating from the Treaty of Rome, which established a common health and safety legal framework.
HSWA, You and Coronavirus.
Fair enough, you may say, but how does this relate to Coronavirus and possible employer liability.
Well, under this existing legislation, the basis of an employer’s duty towards his employees arises from the existence of the contract of employment. There is an implied term in the contract that the employer will take reasonable care to ensure the safety of his employees.
The employer’s liability will arise in one of two ways. He will be directly responsible for his own actions or omissions which amount to negligence - and - he may also be responsible for the negligent acts or omissions of other employees.
Employers Direct Liability.
So let’s put this in easy to understand terms as it relates to catching coronavirus as an employee. Under the common law, it is necessary for an employee who has contracted coronavirus to ask two questions.
- was he, as an employee going about his regular course of employment, someone the employer should have reasonably foreseen would be likely to have been in jeopardy. Obvious examples here would be transport workers and other such employees, who by necessity, interact first hand with members of the public.
- given the above, did the employer attain a standard of care expected from a reasonable employer.
What Must Be Shown by the Employee who has contracted Coronavirus.
The employee must show three things:
- that the employer owed a duty of care
- that there was a breach of that duty
- that the breach was the cause of his contraction of coronavirus
Duty of Care explained.
The easiest way to explain duty of care owed by an employer to an employee, is by citing examples of precedent case files. That is earlier decided cases the Courts rely upon as guidance, in determining the validity of a claim of duty of care owed. For example:Bradford v Robinson Rentals  1 All. E.R. 267
In a particularly cold spell an employee was instructed to make a delivery involving a round trip of some 400 miles, in a van which had no heating and badly fitted windows. He suffered frostbite and brought an action against his employer.
Held: The employer was liable for failing to provide suitable and safe plant and equipment.
Safe Place of Work: The employer has a duty to take reasonable steps to ensure that the workplace is safe.
Safe System of Work: The employer has a duty to ensure that the methods used to undertake the work are safe. This includes training, supervision and protective clothing etc.
You may be forgiven after reading the above that an employer will be held liable in all but the most extreme cases where failure of duty of care is claimed. Bus drivers, shop assistants and other employees, whose role during the current pandemic is deemed essential and who, by the very nature of their employment, must interact with the general public (and who have not benefited from safe place and system of work) will feel especially aggrieved. However, there are caveats to this doctrine.
When a Duty of Care Claim Fails.
Duty of Care is reliant on reasonable measures being adopted by an employer under the circumstances. Again interpretation is somewhat subjective, but the following case file should serve to shed some light on how the Court look at such circumstances, where an employer’s duty of care was not found to have been breached.Latimer v AEC Ltd  A.C. 643
Rain had flooded a factory floor, which had become slippery with a mixture of oil and water. Sawdust was laid over most of the floor but there was not sufficient sawdust to cover the entire floor. An employee slipped on part of the untreated floor and was injured.
Held: The employer was held not liable. Reasonable precautions had been taken and the Court held the danger was not sufficient to warrant closing the factory entirely.
Duty of Care and Coronavirus.
It would appear therefore, given the above, that an employer has a duty of care to ensure an employee whose role is deemed critical during the current outbreak, is cared for and all reasonable measures are taken to ensure those vulnerable employees are protected. This may include supplied personal protection equipment and training in the best practice use of.
However, as long as an employer can demonstrate he did everything that could be reasonably expected under the circumstances, the Court may find he has fulfilled his duty of care obligations.
So what can we take from this? Whilst it is true to say employers need only show they did all that was reasonably expected of them to rebut a claim of breach of duty care, what could be reasonably expected, in our view, would be providing all front line employees personal protection equipment and training on best practice use of whilst interacting with the general public during the course of their regular employment.
An employer simply arguing he did the best he could, in our view, fails the reasonableness test.
Public Liability and Coronavirus.
In this segment we shall look at the potential liability arising from attendance at a public -that is to say retail, authoritarian or elective public venue. This description would encompass shopping for groceries (but include non-food shopping prior to 23 / 03 / 20) mandated visits to civil centres (such as council offices etc.) and going to the doctors / dentist, hospitals under appointment and / or other non-elective salons.
Under such circumstance’s owners, operators and officials of such premises have a duty not to act in a negligent manner which could endanger their visitors, clients or patients.
Negligence and Coronavirus.
Negligence may be defined as the breach of the duty of care owed by one person to another, which results in damage to that other.
Further, as the law in this area developed, it came to be recognised that certain relationships gave rise to a legal duty, such that carelessness by one of the parties (”the other person”) in that relationship. which caused harm to the other (“his neighbour”), would enable that other to bring an action for damages against that other person.
The Other Person.
So who, under the eyes of the law is this other person who owes a duty of care not to act in a negligent manner when interacting as an individual, agent or legal entity, with his neighbour. Put simply if you visited a public place, be it retail, professional or civil and that visit was either by necessity or scheduled non elective appointment, then that establishment or environment owes you a duty of care. That duty, if negligently discarded, leading to a person attending such a premises or locale contracting coronavirus as a direct result – then that person may hold that individual, agent or legal entity responsible for that establishment or environment liable.
The law has long held the following “neighbour principle” in such circumstance.
“You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour.”
Who is your Neighbour.
The answer to this in the eyes of the law is any person who is directly affected by an act - or lack thereof by another – and such act or omission directly gave rise to that person`s injury.
In short, if you attended such a qualifying location and by negligent omission i.e. lack of preventative measures such as staff in full protective gear, social distancing etc. you contracted coronavirus, the owners, operators or other such relevant body can be held liable for your injury.
Reasonable Care and Coronavirus.
What constitutes reasonable care is always going to be subjective, but in a public venue and environment of coronavirus - surely reasonable care must encompass agents of that venue wearing protective clothing and masks (to limit transmission of coronavirus), training in best use of that equipment and constantly sanitised public counters and spaces.
We believe that there are many such cases of individuals contracting coronavirus as a direct result of either the lack of duty of care shown by an employer or by the negligent acts or omissions of persons or agents in charge of public venues.
We believe that a strong case, utilising existing law and legal precedent, can be made holding such persons or agents responsible and liable to pay those persons found to have been injured by their lack of care or negligence, substantial damages.
Whether you are a bus or train driver, a conductor or other essential transport worker, a fast food worker or delivery person, a civil servant or council worker, grocery shopper or shop worker - the list is endless – or anyone who has had no choice but to visit a public place, for whatever reason, if you believe you contracted coronavirus you should give careful consideration to this message.
Unfortunately such claims as outlined above are very expensive, often requiring the instruction of professional counsel (barristers) to first opine on the merits of a case and then, if the opinion is favourable, draft the Claimant’s Statement of Case.
Counsel fees regularly run into hundreds of pounds per hour making such liability claims far outside the means of most workers. The overly complex nature of such a claim involving duty of care failure and / or negligence, is also far outside the purview of so called no win no fee personal injury claims companies.
To counter this, we propose a one off, non-returnable fee of £99 for persons wishing to join this action. Yes, it is a risk, but this fee will allow us to instruct qualified UK barristers to evaluate individual claims and categorise them into what is colloquially known as group or class actions. Here multiple claimants will be linked, for example shop workers, whose individual experiences are likely to be very similar, allowing appointed counsel to draft Letters Before Action (LBA) to the appropriate bodies, seeking individual settlement. We believe that under the weight of such class action, with multiple claimants having very similar experiences, potential defendants may well choose to settle out of court, rather than endure a potentially embarrassing (from a business point of view) public hearing.
The UK coronavirus outbreak has been hugely impactful to many. Companies both large and small have been impacted and civil venues placed under great strain. However, this does not change the law and the fact is the law states you are entitled to compensation in the form on monetary damages, if another is liable for your injury.