Kelvin Farmaner, Partner at Trethowans LLP and Arthur Denton, Claims Leader at Cornish Mutual, discuss potential liability claims relating to coronavirus and how to minimise the risk to your business.
Along with the rest of the world, the UK is in the grips of the coronavirus crisis and business owners are facing a number of challenges. As our Members adjust working practices on their farms and rural businesses to meet these challenges, it is important that they minimise the risk of the spread of the virus and claims being made against them.
Avoiding direct coronavirus claims
The Government has provided guidance for employers, farmers and rural businesses, which encourages staff to work from home where possible and advises on what to do if someone becomes unwell in the workplace. However, there have already been reports that some businesses have ignored this advice and asked their staff to come into work. This opens the possibility of infected employees later seeking to make a claim against their employer for exposing them to coronavirus by not acting in accordance with Government advice.
While there may be possible defences available to such claims, including challenging the way in which an employee may have become infected, we are sure any business would rather avoid this situation altogether, particularly when they are trying to get back on their feet. It is therefore essential to follow the Government advice and have an audit trail showing that you followed the advice carefully.
Avoiding indirect Coronavirus claims
A number of issues, which are indirectly related to the coronavirus pandemic, may arise due to an employer making changes to working practices.
Returning after furlough
Many staff have been furloughed during the lockdown period and it is currently illegal for any furloughed staff to do any work for that employer. Staff on furlough cannot provide services or generate revenue for their employer or any connected employer, even on a voluntary basis. As the lockdown measures ease there are likely to be a number of staff members returning to work after a period of absence. As an employer there is a non-delegable duty of care to staff to ensure their safety.
Equipment and training
Under health and safety law, employers are responsible for assessing risks to any employee in the workplace and for taking reasonable steps to minimise these risks.
The employer’s responsibilities also include ensuring that any equipment that is provided for their staff is in good working order, suitable for the purpose for which it is to be used, adapted to the needs of the employee and regularly maintained to ensure that it remains in a sound condition.
The employer must also provide training if the work involves the use of any machinery or entails heavy lifting of goods.
For further guidance the HSE has produced advice concerning coronavirus and how to apply Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
It is important that employers talk to all of their workers about how best to carry out tasks safely during this difficult time.
Employers should carry out risk assessments which clearly set out how they intend to manage the risks relating to coronavirus in the workplace. The risk assessments should be circulated to all employees, who should then confirm with you that they have read and understood the adapted working conditions. Keep a clear audit trail to provide evidence of the fact that these documents were produced and understood by employees.
This is a challenging time for anyone running a business. Continuing to follow Government advice, carrying out regular risk assessments and keeping good records will provide some protection against future claims.