COVID-19 workplace claims: a new generation of claims and enforcement action?
Currently COVID-19 and long COVID (where COVID-19 symptoms last more than 12 weeks) is not recognised as an occupational disease in the UK.
Since the summer of 2020, a number of trade unions in the UK have been calling for COVID-19, especially long COVID which can also be debilitating, to be considered as an occupational disease. In February 2021, the All Party Parliamentary Group on Coronavirus put a proposal to ministers that long COVID should be recognised as an occupational disease and that frontline health and key workers should be compensated in recognition of the effect that long COVID has. A number of countries in Europe, as well as Canada and South Africa, already recognise long COVID as an occupational disease and have set up compensation schemes for key workers, including those in the health industry.
Could this be an indication of the beginning of a new breed of civil claims in the UK and will this extend to future enforcement action by regulatory authorities such as the Health and Safety Executive (HSE)?
Civil claims by employees following the contraction of COVID-19 and long COVID during the course of their employment, or the family of a person who passed away due to COVID-19 contracted at work, are likely to follow whether or not there has been a criminal investigation by a regulatory authority.
It is possible, due to public and political pressure, that COVID-19 and long COVID will become a recognised occupational disease (at least for front-line workers) where it can be demonstrated that an employee was potentially exposed to COVID-19 for a prolonged and significant period during the course of their employment as a consequence of the nature of their work activity, contact with others and/or inadequate COVID-19 secure measures. We anticipate this could lead to an influx of claims (some of which may be fraudulent) in the near future, similar to what was seen in the travel industry in recent years with sickness and diarrhoea claims. Claimants will, however, need to prove causation and which is likely to be extremely difficult given the transmissibility of the virus.
Despite COVID-19 currently not being recognised as an occupational disease, an employer is obliged under Regulation 8 of The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) 2013 to report certain COVID-related exposures to the HSE as follows:
- An accident or incident at work has, or could have, led to the release or escape of coronavirus. For example, if a lab worker accidentally smashes a vial containing coronavirus and people are exposed. This must be reported as a dangerous occurrence.
- An employee that has been diagnosed as having COVID-19 attributed to an occupational exposure to COVID-19. This must be reported as a case of disease if there is reasonable evidence of occupational exposure being the likely cause of the disease.
- An employee that dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent, but again only if there is reasonable evidence that death was caused by an occupational exposure to COVID-19.
Reportable incidents of workers under RIDDOR that have contracted COVID-19 in the workplace may well be investigated by regulatory authorities, especially following reports from whistle-blowers or where a cluster of COVID infections in the workplace is identified.
The regulatory authorities have indicated that they are prepared to take enforcement action against companies which do not ensure adequate COVID secure measures are implemented as far as reasonably practicable, and enforced in the workplace. This will include issuing a Notification of Contravention, Enforcement Notices and taking action in the courts.
To date, we are aware that a number of Enforcement Notices and Notifications of Contravention have been issued for not having adequate COVID-19 secure measures in place. It is anticipated that in the right case, for example where a company has been put on notice that the COVID-19 secure measures have been deemed inadequate and where there has subsequently been a cluster of COVID-19 infections, that there is a strong likelihood enforcement action will follow in the courts.
In addition to civil claims related to contracting COVID-19 in the workplace, it is likely that a number of indirect claims will follow. It is anticipated that there will be an increase in cases brought before the Employment Tribunals as a result of action being taken against employees who are unwilling to return to the workplace or where employers make changes to terms and conditions of employment, or even terminate them as businesses face financial difficulties as the furlough scheme comes to an end. Further, as a consequence of working at home, there is an expected influx of claims related to musculoskeletal injuries and stress-related claims.
It is likely that there will be an increase in enforcement action in the criminal courts and civil claims, directly and indirectly related to COVID-19. Some firms are already advertising their services in regard to bringing a COVID-19 related claim on behalf of claimants and groups of claimants. It is too early to see any trends but it is anticipated this new generation of claims and prosecutions may be seen from the end of 2021 onwards. Claimants in any civil claim will, however, need to be able to prove causation which will be a significant hurdle to overcome in many claims.