Employers are required to report work-related COVID-19 cases to the Health and Safety Executive under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) and employers are all too aware that a failure to do so could result in a fine.
The HSE guidance states that for an incident to be reportable as a dangerous occurrence, the incident must have resulted or could have resulted in the release or escape of coronavirus. The assessment is expected to be based on a reasonable judgment as to whether the circumstances created a real risk or had the potential to cause significant harm. The employer must therefore make a judgement based on the information available as to whether or not a confirmed COVID-19 diagnosis is likely to have been caused by an occupational exposure. That all sounds simple enough but employers have been faced with an almost impossible challenge to identify causation in the context of the prevalence of the virus in the community, the increasing levels of infection and the numbers of the population who remain asymptomatic.
The HSE has previously accepted that there is ‘widespread underreporting’ and the TUC has recently published its analysis of the reporting concerns. It found that in the twelve months from April 2020, a total of 32,022 COVID-19 infections and 387 deaths were reported under RIDDOR. The number of deaths being investigated by the HSE is even lower as by 19 May 2021, the HSE had investigated or was in the process of investigating only 216 COVID-19 fatalities. Contrast these figures with those from the Office for National Statistics for the same period which identified that 15,263 people of working age had died from COVID-19.
The TUC has highlighted real concerns about how the HSE advice on COVID-19 and RIDDOR is being interpreted and the TUC‘s position is that it believes employers are using the cover of community transmission and avoiding accountability as a result. There is also an implication to employers that a report under RIDDOR will be seen as an admission of a breach of government safety guidance.
But is it really that simple? Employers report confusion and lack of understanding around the HSE guidance, which in some cases has been exacerbated by a change in the advice in late 2020. That combined with the fact that in most cases employers are genuinely unable to identify the source of the infection, means that whilst underreporting cannot be discounted, this is unlikely to provide a full explanation of these figures.
The HSE’s approach has always been clear in relation to the guidance issued and confirmed from the very early stages that it would take an ‘advice first’ approach. That ethos seems to have continued by the HSE as despite 3,872 COVID-19 related outbreak in workplaces, there has still not been a single COVID-19 related prosecution.