Covid-19 and Employers Liability claims

COVID-19: and Employers Liability claims's Tags

Tags related to this article

COVID-19: and Employers Liability claims

Published 18 marzo 2020

The evolving situation in which the UK finds itself presents many challenges to businesses and individuals as social distancing and self-isolation are encouraged and the Government’s advice changes from day to day.  As businesses seek to change their systems of work to maintain productivity, and in some sectors seek to survive over the next few weeks, do they also face the risk of claims if their employees develop Covid-19? 

The duties of employers to their employees, including the duties to provide a safe workplace and safe systems of work, will include their amending work instructions to take into account current Government guidance, albeit in many circumstances the social distancing recommendations may prove impractical.

Employers should ensure that they provide adequate handwashing facilities for their employees, taking into account the increased frequency of washing hands, and should ensure that their employees are allowed the time to maintain personal hygiene. 

Clear instructions should be given to employees that, if they or members of their household exhibit symptoms which the Government advises should lead to self-isolation, they should follow that advice and ensure that they do not attend work.  Where employees’ existing health conditions place them at increased levels of risk from Covid-19, and where employees are pregnant, they should be advised not to attend work, and consideration will need to be given to how the business will remunerate those employees as a reduction in their income may cause them to ignore the advice and attend work.

Insofar as it is possible, employees should encourage social distancing within the workplace, maintaining the 2-metre gap between colleagues and others.  Whilst in many sectors, including healthcare and childcare,  physical contact is often unavoidable, consideration should be given to whether the duration of close contact can be reduced, and whether, subject to their availability, additional PPE or handwashing facilities should be provided for those employees.

Where employees work from home, the additional risks presented by this should be considered. We have considered this question in our alert Covid-19 Working from Home Risk Assessment.

Given the nature of Covid-19, and the proportion of the population expected to develop the condition over the next few months, any claim presented on the basis that the condition was contracted due to negligence of an employer would appear to be difficult to prove, particularly on causation, although we should not be surprised if claims of this nature were to be received in the future.

The challenges in employers liability do not relate solely to potential new claims, but also to existing claims which are unrelated to Covid-19. 

As many businesses move to work from home, prohibiting parts of their workforces from attending sites, the ability of businesses and their insurers to investigate claims may be impaired, particularly when claims inspectors are unable to attend sites.  In those circumstances, insurers should proactively seek extensions of time from Claimants’ representatives in order to minimise the risk of Pre-Action Disclosure applications.

The challenges presented by home-working will also be faced by many solicitors representing Claimants, and insurers should expect requests to be made for extensions to Limitation periods as  solicitors face difficulty in receiving documents from their clients and a number of medical experts cancel examination appointments.  Each request for an extension of time should be considered with care and on its merits, and, where extensions are to be agreed, they should be for fixed periods and to an agreed calendar date; general agreements to waive limitation may cause insurers to lose limitation arguments which existed prior to the challenges of Covid-19 and, in cases with multiple potential Defendants, care should be taken to ensure that any agreement to extend limitation is subject to all other Defendants agreeing to the extension.

DAC Beachcroft are producing a number of articles on Covid-19, and will continue to provide advices as the position evolves, which are available on our website.

Authors

David Johnson

David Johnson

London - Walbrook

+44 (0)20 7894 6856

David Williams

David Williams

Leeds

+44 (0)113 251 4844

< Back to articles