Frontline challenges - COVID-19

19th June 2020

If recent news reports are to be believed then the Health and Safety Executive (HSE) could play a key part in helping us understand how a number of health and social care workers sadly lost their lives in the pandemic. This comes as the HSE has confirmed that it is investigating a number of the deaths of health and social workers following reports made to it under its RIDDOR reporting regime.

What is RIDDOR? 

Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 places a statutory duty on a ‘responsible person’ to make a report to the HSE of specified workplace incidents. HSE guidance states that reports should be made by the quickest means practicable, without delay, and within 10 days. If a responsible person fails to do so then this can lead to a fine being issued. 

Am I a responsible person? 

A responsible person is an employer, those that are self-employed or the person in control of the workplace.

What do I need to do?  

Only last month the HSE issued further guidance on RIDDOR reporting of COVID-19 for the health and social care industry which perhaps came as the HSE acknowledges that the criteria for determining whether a RIDDOR report should be made is “not easy” to apply. It also states on its website that around one third of RIDDOR reports in health and social care are incorrectly recorded. 

The latest guidance provides further detail to help determine when a RIDDOR report should be submitted and provides some principles for a responsible person to apply when determining whether a RIDDOR report should be submitted. It lists three circumstances in which it would expect a RIDDOR report to be made:-

  1. Dangerous Occurrence - An accident or incident at work has or could have led to the release of coronavirus. 
  2. Disease - A worker has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. 
  3. Biological agent - A worker dies as a result of occupational exposure to coronavirus. 

A number of generic examples are detailed on the HSE’s website but they come with the caveat that that each case will need to be considered on its individual merits. One of the key difficulties that a responsible person faces is identifying the link between staff contracting COVID-19 and the workplace incident itself.  

Where could all of this lead? 

HSE Investigations 

The outcome of the HSE’s investigations is unlikely to be known for quite some time but there will be significant public interest whatever the outcomes are. It has been reported that these investigations may focus upon the availability of PPE equipment for NHS staff and healthcare workers. It they do and if failings are identified then there are likely to be calls for charges of Corporate Manslaughter or Gross-Negligence Manslaughter to be brought. However, the scientific evidence is far from settled, despite government guidance. When deciding whether or not to bring criminal charges, it will be difficult for the Crown Prosecution Service and other prosecuting agencies to properly establish a ‘realistic prospect of conviction’ when faced with competing scientific opinion. For example, how is COVID 19 transmitted in different work environments? The chances of transmission are highly fact specific. There are many relevant factors, some of which will be extremely difficult to formulate in evidence. What amounts to ‘reasonable measures’ when preparing a workplace for the return of staff in a COVID-19 situation, especially if the guidance seems to change each week? How is it possible to connect a perceived failing on the part of the employer to a death from COVID-19? This might be less problematic in forums where the standard of proof is on the balance of probabilities (the civil standard). Having regard to the current uncertainties, can a case of this type really be proven ‘beyond reasonable doubt’ (the criminal standard)? Even at a very basic level, there is fierce debate on what particular face masks and face coverings achieve. The rules and recommendations in this respect are quite different across the EU and each country takes its own scientific advice.

Coroners Court and Inquests 

In a limited number of cases the Court may hold an inquest which is an investigation into a death which appears to be due to unknown, violent or unnatural causes, it is not a public inquiry. A Care Provider will likely be called as an Interested Party as may the HSE with a view to any potential enforcement or prosecution and the Care Quality Commission (CQC) who are likely to undertake a further inspection with a view to publishing an updated inspection report. The CQC themselves have enforcement powers and of course the family which might mean that any inquest could become an Article 2 inquest under the Human Rights Act which would widen the scope to it.

A Coroner can issue a Prevention of Future Death Report in relation to the risk of future deaths occurring, If that were to be in relation to PPE then this could be directly to the Secretary of State for Health.

For the health and social care industry the message in some respects is clear - careful consideration needs to be applied to the current RIDDOR reporting regime. If you require assistance or advice on your position then please do not hesitate to contact JMW.

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Jonathon Enston is a Senior Associate located in Manchester in our Business Crime & Regulation department

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