With much fanfare, Boris Johnson addressed the nation on Sunday to declare (at least partial) success in our measures to mitigate the spread of COVID-19. The main thrust of the Prime Minister’s message was that we had now reached a point where those who cannot work from home should start returning to work. The next evening, reams of ‘COVID-Secure’ Health & Safety guidance followed for businesses to digest, with a somewhat fanciful suggestion that such guidance could be properly reviewed and implemented in time for workplaces to re-open some 36 hours later.
As with most COVID-19 policy decisions, the Government is attempting to tread the perilous tightrope of taking steps to re-ignite the stagnant economy, without putting public health at risk. Understandably, the focus of nearly all of the COVID-Secure guidance published on Monday was on minimising the health and safety risks that employees may face when returning to the workplace. In order to minimise such risks and meet your legal obligations, you must conduct a thorough COVID-Secure risk assessment prior to re-opening your business premises. You can use our free COVID-19 risk assessment to assist this.
Absent from the COVID-Secure guidance, however, was specific information on the risks and potential liabilities that businesses themselves may face if they re-open too early or without having conducted a thorough risk assessment to ensure their premises is COVID-Secure. Although not conducive to the Government’s prevailing “back to work” narrative, there nevertheless remain significant legal, financial and reputational risks that businesses should be aware of before pressing ahead with any COVID-Secure re-opening.
This blog post examines the five primary risks, to assist businesses in making a more informed decision before they get “back to work”.
1) HSE inspection or investigation
Boris Johnson has confirmed that increased ‘random spot-inspections’ will be an aspect of the Government’s enforcement of the COVID-Secure guidelines. The Government has also publicised a range of methods to enable the public to easily report potential health and safety breaches, including a web-form and phoneline. In the current climate, and for good reason, individuals are likely to be more acutely aware of health and safety and far more likely to report and act upon any potential breaches. With the Government providing £14m extra funding to the HSE to ensure safety during the COVID-19 pandemic, it therefore seems prudent for businesses to expect an increased likelihood of facing HSE inspections.
Such inspections will, if your premises are compliant, cause some temporary disruption to your business but help to reassure your workforce about their own safety. Should your premises not be ‘COVID-Secure’, your business could face a time-consuming investigation and, potentially, a range of remedial orders and sanctions. In most cases, these orders and sanctions are designed to ensure compliance rather than penalise your business, although the approach the HSE takes for COVID-19 related failures remains to be seen. For more serious breaches, the HSE has the power to prosecute, which carries significant risk (see (2) below). For further guidance, see What happens if I break health and safety laws?.
2. HSE prosecution (leading to unlimited fines and even imprisonment)
If your business has committed serious breaches of health and safety law, there is a risk of prosecutions being brought. Sanctions as a result of prosecutions can be levied against companies, business owners, individual directors and senior managers.
Until the first prosecutions are brought, it is unclear how breaches of the COVID-Secure guidelines will be policed and enforced. However, given public sentiment at present, any serious breaches involving gross negligence or recklessness from businesses seem likely to face the most serious possible sanctions. These include unlimited fines, disqualification and even imprisonment for company directors (and senior managers). For further guidance, see our Q&A content on HSE prosecutions.
3. Legal claims from employees
The costs and time involved in simply handling any such claims will always be significant, let alone any potential compensation. Employers will need to exercise great care in how they go about requiring employees to return to work. It is crucial that you consult with your employees and maintain a close dialogue throughout your re-opening, and provide them clear instructions and explanations to help them understand all decisions. A blunt order to “get back to work” that comes out of the blue is likely to cause understandable alarm amongst employees, and create an “us against them” environment which may make claims against your business more likely.
4. Legal claims from customers or other third-parties
You must also consider customers, visitors, couriers and any other third-parties who may be affected by your business (both on and off its premises). Your business owes a duty of care to such third-parties. Any failure by your business to abide by its obligation to take reasonable care (including failure to comply with your COVID-Secure obligations) could potentially lead to expensive and time-consuming legal claims, if third-parties suffer loss or damage as a result.
There is additionally a theoretical risk that claims could be brought against your business by third-parties if they believe your business directly caused them to catch COVID-19. Much like with employees, such claims would appear unlikely based on existing law, but current circumstances are entirely unprecedented, so businesses should at least be aware of the possibility.
5. Reputational damage
The trickiest risk for your business to quantify may be the potential reputational damage of suffering a COVID-19 outbreak in your workplace. Even if your business is fully compliant with COVID-Secure guidelines, the very nature of a highly-contagious infectious disease makes it impossible to fully eliminate the risk of an outbreak occurring in your workplace. Any business that is associated with an outbreak, even if it has complied fully with its legal obligations, will suffer reputational damage. Employees are likely to be reluctant to continue working, and customers are likely to stay away.
Any of the employee/customer claims and HSE enforcement measures described above will further hit the reputation of your business. Such actions and enforcement measures are likely to attract media attention in the current climate, and risk causing significant (and potentially irreversible) reputational damage to your business.
Ultimately, understanding your legal obligations, carrying out a thorough risk-assessment, consulting with your staff as required, and communicating clearly with stakeholders will help to minimise each of the risks set out above. Comprehensive insurance cover may also help, although is unlikely to cover you for your own negligence. Even with all of these protective measures, there is no way to fully eliminate the risk of re-opening your business during a global pandemic. The public is being encouraged to “stay alert”, and businesses considering a ‘COVID-Secure’ re-opening would do well to adopt a similarly vigilant approach to the potential risks before getting “back to work”.
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Harry is General Counsel and Company Secretary of FromCounsel, the specialist corporate legal resource trusted by top global law firms and FTSE 100 companies. Before joining FromCounsel in 2021, Harry was a member of Sparqa’s editorial team for over 4 years, having previously practised as a corporate solicitor for 6 years at Farrer & Co. Harry regularly contributes his expertise to the blog, focusing on corporate and commercial law.