Health and Safety regulatory and inquest COVID-19 update

18 May 2020

We have seen some significant developments this week in relation to the COVID-19 pandemic with the prime minister’s announcement of the Government’s recovery strategy. 

  • On 11 May 2020 the Department for Business, Energy and Industrial Strategy published sector specific practical guidance for making workplaces as safe as possible and giving people confidence to go back to work during the pandemic.The documents have been developed in consultation with businesses, unions and industry leaders as well as Public Health England (PHE) and the Health and Safety Executive (HSE) to identify best practice on the safest ways of working.
  • The guidance covers eight workplace settings which are allowed to open and sets out five key points:
  1. Work from home if you can
  2. Carry out a COVID-19 risk assessment in consultation with workers or trade unions
  3. Maintain two metres social distancing wherever possible
  4. Where people cannot be two metres apart, manage transmission risk
  5. Reinforce cleaning processes

It is clear that all organisations need to carefully review the measures recommended, although concerns remain about the interpretation and practical implementation of those measures combined with the potential for this to raise more health and safety issues for workers. Organisations will have to think carefully about the return to work and whether they are able to do so safely and in compliance with the guidance. The guidance does not override the duties employers already have under the existing health and safety legislation and it is possible that some organisations simply cannot achieve a safe return to work.

  • We can expect the guidance to evolve as this is very much in its first phase and more guidance will be released as the government strategy progresses.Organisations will therefore need to monitor the guidance and regularly check for updates.
  • The requirement to share the results of risk assessments with workers and open encouragement for breaches to be reported reflects the emphasis of employees being at the heart of these measures,This also, however, allows the HSE to quickly and easily identify whether organisations are compliant.
  • That, combined with an announcement that up to an extra £14 million has been made available for the HSE, supports the HSE’s previous announcements that it will investigate potential breaches and take the necessary action and we have seen an increased interest from the HSE in investigating COVID-19 measures implemented by organisations.At this stage the message from the HSE is that it will take action in the form of advice and notices, but questions remain over its future intentions and appetite for prosecution.
  • Criminal courts continue to prioritise urgent cases and are assessing individual hearings on a case by case basis.A select number of crown courts are part of a new pilot scheme which will run jury trials in person, the first of which will take place from Monday 18 May 2020.Health and safety cases are not seen as falling within the urgent category and tactical approaches in advance of charging decisions should certainly be considered.
  • The chief coroner has also provided guidance on the approach to be taken to the investigation of deaths linked to possible exposure in the workplace. Clarification is provided on the circumstances in which an inquest may be required, and a coroner may need to consider whether there was a failure to take precautions which caused the deceased to contract a virus and which contributed to death.It is likely that the coroner’s court will be the first forum in which concerns over the adequacy and quality of the protection available at work will be investigated. Given the significance of such issues for organisations, it is essential for those organisations to prepare to assist in any coronial investigations.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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