Employers could face prosecution over Covid infections, say lawyers

John Cooper QC, Dominic Kay QC and Simon Antrobus QC, all barristers at Crown Office Chambers, were speaking at a seminar to discuss enforcement of Covid-19 guidance for workplaces.

Mr Antrobus said prosecutions will be inevitable: “There’s going to be a pressure to prosecute companies if there’s a cluster of cases of Covid-19 in a particular workplace, irrespective of prior enforcement notices from HSE.”

The seminar ran through which laws could provide the basis for prosecution in a court room scenario.

While HSE has said in the past (in its 2013 guidance for employers on controlling the risk of infection in the workplace) that infections employees might pick up from their workmates are “not the employer’s responsibility under the COSHH law” because it is a “public health matter”, this will not translate necessarily to today, the lawyers said.

They said that there has been no time to draw up new legislation to meet our current challenges. But, Judges could feel “pressured” to interpret the Health and Safety At Work Act to fit with Covid-19.

Mr Cooper said: “You can see the HSWA being treated as if it has positive obligations to keeping workplaces Covid secure.”

Without clear laws stating employers’ obligations to protect staff from a virus, it will be a “minefield” for all concerned, said Mr Kay. However, government guidance for workplaces is very clear about what is expected from employers, such as using social distancing and PPE to protect staff, and failure to follow these could be used by judges as basis for fines.

Mr Antrobus said guidance was a ‘wolf in sheep’s clothing’: “It’s described as flexible, but we know full well how courts will treat it – they will treat it as rules and laws to be complied with.”

Commenting on what action we can see from HSE, Mr Kay said he thought HSE is in a dilemma because government is “desperate to get people back to work” but on other hand, needs to prevent a second wave. “HSE needs to ensure safety measures are satisfactory…but that they don’t go so far that businesses are tempted to reduce output because they’re fearful that an outbreak could put them in the wrong end of a prosecution.”

He said cases won’t necessarily flow from any will from HSE to prosecute, but from the public. “I suspect prosecutions will follow from either employees speaking out or their family members about what they consider to be a failure of the employer whether social distancing or not providing PPE. I can see that leading to investigation or prosecution.”

The Crown Office seminar was held on 2 June. More information at: 
www.crownofficechambers.com/news-and-events