Many employers are concerned about the prospect of facing compensation claims from staff who contract coronavirus at work. Andrew Morgan and Richard Kenyon* examine the likelihood of civil actions arising from the Covid-19 pandemic.
Where someone contracts Covid-19 in the course of their employment, they may be able to make a civil claim against their employer.
Recent advice from the Chief Coroner states that coroners should be alive to the possibility that death from Covid-19 may be the result of human act or omission, rather than just “natural cause”. The government’s decision to make “bereavement payments” to the families of some classes of workers further underscores the connection between work and the risk of serious injury and death.
The UK’s regulations relating to the award of Industrial Injuries Disablement Benefit (IIDB) recognise that people can and do sustain injury and contract diseases in the workplace. Sometimes, these injuries are related to the employment, rather than being merely coincidental to the fact of employment.
In these circumstances, state benefits will be awarded if the disease is in the UK government’s list of ‘prescribed diseases‘, and a civil claim may follow.
The disease(s) caused by Covid-19 are not currently prescribed by government. However, the UK’s Department for Work and Pensions could use secondary legislation to include Covid-19 as a prescribed disease, following a recommendation from the Industrial Injuries Advisory Council (IIAC).
The prescribed occupations, during the course of which people who contract the disease may have the right to compensation, might include health, care and related occupations, or could be widened to encompass any occupation involving exposure to Covid-19.
The broader eligible workforce might include police officers, supermarket staff, transport workers and others who regularly come into contact with large numbers of people, or those who come into intimate contact with a smaller number of people, such as police officers during an arrest or criminal defence solicitors giving advice in a cell.
Employers’ duties to protect their workers
Employers owe their employees duties of care in the tort of negligence. A breach of duty which causes injury and/or financial loss can lead to an award of compensation.
If the claim is successful, the court will also order the defendant employer pays the claimant’s legal costs. An employer would expect their Employer’s Liability insurer to conduct the defence and pay any damages and costs awarded by the court or negotiated by the insurer on its behalf.
In addition to their common law duties to provide a safe place and system of work, employers owe employee statutory duties under the Health and Safety at Work Act 1974 to take reasonably practicable steps to safeguard safety and health. Failure to do so is an offence.
An employer will owe a duty in respect of a specific risk, if that risk is reasonably foreseeable to an employer in that situation. Some employers will (or ought to) foresee risks that other employers might reasonably not.
“Knowledge” of the specific risks of Covid-19 arose from the experience of the Chinese city of Wuhan, which was widely reported in the international press from the end of 2019. It may be argued that every employer should have been thinking about the risks posed by Covid-19 from that point, and should have been preparing and revising risk assessments as the virus spread internationally.
What is considered a “reasonable” risk assessment will vary according to the facts. An international passenger airline, for example, will have very different obligation to its employees than the proprietor of a corner shop.
Breach of duty
Employers should take a hierarchical approach to risk management and reduction – seeking first to avoid the risk entirely; then reduce the chance of the risk arising; then minimise the consequence of the risk; then cease the risky activity altogether.
Depending on the workplace, provision of appropriate personal protective equipment (PPE), hygiene facilities and social distancing are strategies than can be deployed by many employers. If done in a timely way, this may discharge their obligations to their employees.
Requiring employees to work from home (where the nature of the work allows) will clearly provide a strong defence to a claim, and will minimise the risk of injury and of a claim arising in the first place.
Employers with special knowledge of pandemics (such as university and pharmaceutical research labs) might reasonably be expected to have prepared fully for a respiratory disease pandemic, following the SARS and MERS outbreaks.
Duties owed to employees might also be owed to self-employed contractors, especially where they work alongside each other or as part of an integrated process or service.
If the employers’ breach of duty causes injury, a claim might succeed. But the claimant will have to establish the diagnosis and then prove that workplace exposure, rather than exposure elsewhere, caused the disease.
There is likely to be some doubt that a mild viral infection constitutes an actionable injury.
Where a disease requires hospitalisation, however, there should be no difficulty in persuading a court that it is, in principle, compensatable.
Where an employee dies from, or with Covid-19, there may be an inquest. The law and practice in this area is not entirely clear and will likely vary to some degree from one region to another.
A post mortem will be helpful or even decisive, in yielding a diagnosis. But, the resources of coroners, local authorities and others who support them, will be stretched by the Covid-19 pandemic and it may be too much to expect a post mortem in every case, especially if the death occurs in hospital and there is already a documented assumption of the presence of Covid-19 in the hospital records.
If the diagnosis is reasonably secure, a claimant will have to prove exposure at work caused the injury.
As Covid-19 is a new disease, it remains to be seen how the courts settle the question of compensation, if civil claims are brought against employers.
The Judicial College Guidelines suggest awards for a collapsed lung from £1,880 to £4,540; for toxic fume inhalation they are from £4,540 to £10,750; for permanent breathing difficulties short of permanent breathlessness they are from £26,710 and £46,780.
Admission to ICU with Covid-19 might warrant an award in the top half of this range, i.e., £26,710 to £46,780, while admission to hospital but not ICU would warrant an award in the second and third quartiles i.e. approximately £12,000 to £36,000.
Loss of earnings and related expenses would be recoverable in addition.
Where an employee dies, the value of the claim depends on the deceased’s likely future earnings capacity, among other variables. While much remains unclear, it is important to remember that the novelty of the virus does not excuse employers from their obligations to have reasonable regard for the safety of their employees.