ARTICLE
COVID-19: A safe system of work? A
s law firms cautiously begin to plot a return to the office in the coming weeks as lockdown is gradually eased, they need to be alive to potential pitfalls that could leave them exposed to employers’ liability claims. In this article, James Robins and Ivan Roots of Womble Bond Dickinson, who are specialists in defending law firms, identify some of the key issues and how to address them.
employee establishing a breach of duty by demonstrating that the appropriate measures were in place and being followed in their offices.
The duty Law firms owe a duty of care to their employees in respect of their health, safety and wellbeing. This is a broad duty which includes, amongst other things, providing employees with a safe place to work and safe work equipment.
The uncertainties regarding the source, transmission, incubation and symptoms of COVID-19 have been widely reported. All of these factors would make it difficult for an infected employee to prove that their office was the source of infection, and that they contracted the infection as a result of a breach by their employer.
In order to establish breach of duty an employee must show that their employer has been negligent. If successful, employees may be entitled to compensation as a result of any loss or injury which was caused, or materially contributed to, by such negligence. Following the strict lockdown measures that were imposed in March, many firms across the country made arrangements for their employees to work from home. However, now that restrictions have started to ease, firms need to consider how to re-open their offices safely whilst complying with both their ongoing statutory duties and the current HSE guidance. Mitigation Once fee-earners and support staff start returning to the office, the onus will be on firms to implement the necessary measures to mitigate against the effects of the spread of COVID-19 in their offices. In particular, firms will need to demonstrate that they have implemented a safe system of work which is being followed by employees, and can be readily adapted and reassessed in accordance with updated guidance as a result of any new or increased risks. Firms should therefore ensure that they are well informed as to the current requirements of employers in light of the pandemic, and the HSE guidance on the risks of COVID-19 in the workplace and how to mitigate its spread should be under continuous review. The current guidance suggests that firms should be taking the following preventative measures in order to reduce the risk of infection in the workplace to the lowest practicable level by: ■ complying with social distancing; ■ promoting regular handwashing and surface cleaning; ■ not allowing those who are unwell to attend offices. With the above in mind, it is therefore essential that firms and their insurers ensure that a risk assessment has been carried out to identify the risks of transmission within their offices and the measures to implement in order to minimise those risks. Measures will include more frequent cleaning of workspaces, limiting the number of people using shared facilities such as lifts, kitchen areas and toilets as well as providing reception and front-of-house staff with relevant protection (i.e. masks, sanitiser and screens where necessary). In addition to reducing the risk of transmission, a risk assessment will also help firms to reduce the risk of an 18 | The Bill of Middlesex
Causation In addition to proving breach of duty, an employee must show that the employer’s breach materially contributed to their injury.
However firms should be mindful of how the courts may approach the issue of causation as and when employer liability claims begin to arise. By way of example, it is worth noting that the courts have adopted a more sympathetic approach to claimants in respect of potentially comparable asbestos claims. In such claims, claimants are not required to prove where a single level of asbestos which caused them injury was inhaled – as this would be near impossible to prove. Instead, it is sufficient to establish whether an employer has materially increased the risk of harm to employees. For now, in light of the uncertainties about how the virus spreads, it seems unlikely that the courts will adopt the same approach with COVID-19 claims but only time will tell. Injury and damages So far, it has been suggested that as many as 80% of infections are mild or asymptomatic. For firms this means that many potential claims are likely to be limited in value due to the low levels of injury actually caused. By contrast, employees will need to carefully consider the cost implications of pursuing such claims against firms, particularly in light of the difficulties in proving breach and causation outlined above. What’s next? The unpredictable nature of COVID-19 has left many law firms unable to plan further ahead than a few weeks at a time. However, law firms should be ensuring that their risk assessments are a constant priority over the coming weeks and months. With COVID-19 likely to be with us for the foreseeable future, law firms need to be ready to demonstrate that they are doing all they can to identify and mitigate the risks of transmission of COVID-19 within their workplaces in order to protect their employees. ■
James Robins
Partner Insurance Womble Bond Dickinson
Ivan Roots
Associate Professional Risks Womble Bond Dickinson
