Businesses are implementing plans for the COVID-19 pandemic and are deluged with specific concerns, information and action plans. Many questions are being asked by Board of Directors, but one in particular stands out:

‘What are our health and safety criminal law obligations in dealing with the Coronavirus (COVID-19)?

And what do we have to do and how can we protect ourselves from blame if we get it wrong?’

Background

It is clear businesses have faced difficult decisions to make about handling COVID-19. Some have been fairly generic, but others are very specific to the Sport, Leisure and Events sectors. These have been dependent upon workforce demographics, geographical regions, working practices and even your organisation’s social responsibility. It’s been fairly straight forward for generic decisions, as businesses can follow publicly available guidance, which we constantly share through our online resource library or via the web.

However, plans need to be very specific to your organisation, your people and your practices, this doesn’t always come easily and needs a great deal of resource to develop, and quickly. Answers to questions have needed to worked out such as;

• Who should be required to come in to work?
• What commuting is needed?
• What about travelling for the work itself, whether that is long distance or local?
• What about measures to take within the workplace?
• What if your workplace or operations involve people being gathered together in close proximity (e.g. retailing, sporting or events)?

To make these decisions, it has been essential to bear in mind the criminal law framework of health and safety obligations.

What are the health and safety criminal law obligations?

Don’t lose track of the basic principles of the Health and Safety at Work Act 1974 duty, which is to do everything that is “reasonably practicable” to safeguard your employees and those affected by your operations. Your senior executives should be aware that they face potential personal criminal liability if the organisation commits an offence due to their act or default; each senior executive has a duty to be as proactive on this as someone in their position ought reasonably to be.

There are also specific duties under the Management of Health and Safety at Work Regulations 1999 (MHSWR) to conduct suitable and sufficient risk assessments covering risks to employees who are at work and also risks to non-employees arising from your operations; and to make and give effect to appropriate arrangements for planning, organisation, control, monitoring and review. These arrangements need to be recorded in writing for employers with five or more staff.

Coronavirus advice for employers – What do you have to do?

The principles of risk assessment should guide you through each difficult decision and remind you to evaluate and balance the risks against appropriate control measures. The mantra to guide you through difficult decisions should be ‘would it have been reasonably practicable to have done more’; if the answer is ‘yes’, then you are potentially exposed to criminal prosecution.

Remember to personalise, so far as reasonably practicable, your procedures to your specific workers and those affected by your operations. Exposing a twenty-year-old employee to potential infection will not be the same risk as for someone whose age or underlying health condition makes them more vulnerable.

Follow all relevant guidance and risk assess carefully any derogations from it.

How can you protect yourselves from blame if you get it wrong?

Some decisions will be very difficult over the coming weeks and months, with potential life and death consequences if you get them wrong. You will be balancing these also against the disruption to business and commercial consequences of taking an approach that is too cautious.

Bear in mind the general principle in health and safety law, that if you can’t do an operation safely, you should not do it at all. If your business operations have wider health and safety critical implications, you may have to balance the safety of your staff against public safety.

What if you get it wrong and hindsight is used to accuse you or your organisation of exposing people to unnecessary risks? In these cases, it will be invaluable to be able to point to a written risk assessment or similar document, showing that you have grappled with the issues and sought to balance them, taking into account factors on both sides before reaching a difficult decision that you will keep under review. Quite rightly, it will be harder to blame you in criminal law if you have conducted a balancing exercise and sought to achieve what is reasonably practicable, even if hindsight suggests otherwise.

Specialist health and safety legal advice can help you through the exercise, with the added bonus that in appropriate cases your draft plans, risk assessments and documents can be protected from ever needing to be disclosed by invoking the principle of legal privilege.

Conclusion

• Develop your plans, taking into account the demographics and vulnerabilities of your staff and those impacted by your operations
• Monitor and review to take into account the changing nature of the contagion and your control measures
• Seek specialist health and safety legal advice to help you with the most difficult conundrums and documentation.