Could your business fall foul of criminal law?
Coronavirus has, of course, been a talking point over the last couple of weeks and we have been asked a number of questions about it recently ranging from the need or not of wearing masks to the requirements of self isolation.
Hopefully your company is thinking about what control measures you are going to put in place to continue trading should this become a pandemic. What contingency plans you have should you be short staffed due to employees being ill or in quarantine.
But there is one question that you may not have considered yet and that question is: ‘What are our health and safety criminal law obligations in dealing with the Coronavirus, what do we have to do and how can we protect ourselves from blame if we get it wrong?’.
So, this week I thought that I would look at this question, discuss the legal obligations, look at what you should do and consider steps to take if you get it wrong.
So what do we know so far about Coronavirus?
The World Health Organisation has put together an excellent short video that provides information on the virus, best hygiene practices, preventative measures, and advice on what you should do if you suspect that you may have contracted the virus.
The government has warned that up to a fifth of the workforce may be off sick during the peak of a Coronavirus epidemic in the UK. Plans to contain Coronavirus if it spreads have been set out by Prime Minister, Boris Johnson.
- Police may need to focus on only responding to the most serious crimes and maintaining public order if the virus spread;
- The Army could provide support to emergency services if needed;
- Possible school closures;
- A reduction in social gatherings;
- Working from home.
Some non-urgent hospital care may be delayed to focus on treating coronavirus patients, while recently retired doctors and nurses may be called back to work.
A bill that would allow the government to use extra powers to help control the virus is expected to go through Parliament by the end of the month.
Based on the World Health Organisation’s declaration that this is a public health emergency of international concern, the UK Chief Medical Officers have raised the risk to the UK from low to moderate.
According to the WHO’s latest Situation Report [4 March 2020], there have been:
- 90,870 confirmed cases globally;
- 80,304 confirmed cases in China, with 2,946 deaths recorded;
- 85 known cases in the UK. A total of 13,911 people have been tested, of which 13,860 were confirmed negative.
Some Questions and decisions you may have to consider
Who should be required to come in to work? There may be some employees who could just as easily work from home and not necessarily required to come into work.
What commuting is needed? What about travelling for the work itself, whether that is long distance or local? Could travelling be reduced by running more meetings through teleconferencing for example. OK this doesn’t work for everyone, you can’t build a house by teleconferencing but the design team meetings with client, architect, QS etc can be done this way.
What if our workplace or operations involve people being gathered together in close proximity (e.g. retailing, transportation or events)? Can the risk be controlled by regular cleaning of surfaces/hands etc or are you going to have to introduce stricter controls?
To make these decisions, it is essential to bear in mind the criminal law framework of health and safety obligations.
What are the health and safety criminal law obligations?
Well of course you have the basic Health and Safety at Work Act 1974 duty to do everything that is “reasonably practicable” to safeguard your employees and those affected by your operations. Your senior executives should be aware that they face potential personal criminal liability if the organisation commits an offence due to their act or default; each senior executive has a duty to be as proactive on this as someone in their position ought reasonably to be.
There are also specific duties under the Management of Health and Safety at Work Regulations 1999 to conduct suitable and sufficient risk assessments covering risks to employees who are at work and also risks to non-employees arising from your operations; and to make and give effect to appropriate arrangements for planning, organisation, control, monitoring and review. These arrangements need to be recorded in writing for employers with five or more staff.
You should also expect there to be specific fresh health and safety related diktats promulgated by the Government as civil contingency emergency measures.
Last month, the government declared Coronavirus a “serious and imminent threat” to public health, as it announced new powers to fight its spread. Under the measures, people can now be forcibly quarantined and will not be free to leave.
On 3 March, the government revealed its Coronavirus action plan. It believes that in a “stretching scenario”, up to a fifth of the workforce may be off sick during the peak of an epidemic.
Some points from the government’s briefing include the following:
- A possible delay strategy could be used to move the peak of the outbreak to warmer months so that it does not overlap with normal flu and allows more time for research;
- There are plans ready for a range of outcomes, from mild pandemic with low impact on services (like Swine Flu in 2009) through to severe and prolonged pandemic;
- There are plans for the Ministry of Defence to provide support to Civilian Authorities if requested;
- If the disease becomes established in the UK, further measures to be considered include school closures, home working and reducing large-scale gatherings;
- Police would concentrate on serious crimes and maintaining public order if a lot of officers are on sick leave, in the case of the disease being fully established;
- There could well be an increase in deaths, particularly amongst the vulnerable and elderly;
- Concessions may be made by tax officials if businesses struggle to pay tax bills;
- Some non-urgent care in the NHS may be delayed to focus on treating coronavirus patients;
- Recently retired doctors and nurses may be called back to work.
While the vast majority of patients will have a mild to moderate illness, similar to seasonal flu, a minority will require hospital care and a small proportion could die, the plans warn.
What do you have to do?
The principles of risk assessment should guide you through each difficult decision and remind you to evaluate and balance the risks against appropriate control measures. You need to ask yourself ‘would it have been reasonably practicable to have done more’; if the answer is ‘yes’, then you are potentially exposed to criminal prosecution.
You need to consider, so far as reasonably practicable, your procedures to your specific workers and those affected by your operations. For Example: Exposing a twenty-year-old employee to potential infection will not be the same risk as for someone whose age or underlying health condition makes them more vulnerable. Of course you should also consider the employee’s home life, does he/she have a partner or relative at home with poor health such as diabetes or having chemotherapy. If the answer is yes, you have a duty of care towards them.
Follow all relevant guidance and risk assess carefully any derogations from it.
How can you protect yourselves from blame if you get it wrong?
You may well be faced with some difficult decisions over the coming weeks and months, with potential life and death consequences if you get them wrong. You will be balancing these also against the disruption to business and commercial consequences of taking an approach that is too cautious.
Bear in mind the general principle in health and safety law, that if you can’t do an operation safely, you should not do it at all. However, as a pandemic develops, this general principle will be tested probably to destruction in many cases. If your business operations have wider health and safety critical implications, you may have to balance the safety of your staff against public safety (for example, if your operation is necessary for the supply of utilities, food, medicines, healthcare and communications).
To take an extreme example, imagine doing a health and safety risk assessment before sending your workers in to Chernobyl to fight the fire?
What if you get it wrong and hindsight is used to accuse you or your organisation of exposing people to unnecessary risks?
Well should this occur, you must be able to produce a written risk assessment and method statement, showing how you have approached the issues and sought to balance them, taking into account factors on both sides before reaching a difficult decision that you will keep under review. Quite rightly, it will be harder to blame you in criminal law if you have conducted a balancing exercise and sought to achieve what is reasonably practicable, even if hindsight shows that you didn’t actually balance everything.
Of course you can seek specialist health and safety advice from The Wilkins Safety Group Ltd when we can help you through the exercise
The message I hope, is clear.
You need to:
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Introducing a new member to our team.
‘Melanie is a qualified nurse as well as Grad IOSH, with over 25 years’ experience working across health and social care. Having managed nursing homes and health and safety for a large care provider, Melanie is familiar with CQC requirements and well placed to understand the particular needs of a care service where the safety needs of the service users can be an equal challenge to those of employees. Melanie can make health and safety meaningful to you and your teams, so that keeping people safe and doing the right thing become routine parts of an outstanding service.
QUALIFICATIONS and DESIGNATIONS
- Grad IOSH
- Registered General Nurse
- Postgraduate Diploma in Business Management
- Registered Manager’s Award
- NEBOSH National General Certificate in Occupational Health and Safety City
- Guilds Level 5 Diploma in Occupational Health and Safety Practice