At the start of the COVID-19 pandemic, the Health & Safety Executive (HSE) provided guidance on when deaths from COVID-19 or instances of COVID-19 should be reported to it. The HSE emphasised RIDDOR reports were only required in relation to employees where a death had occurred as a result of occupational exposure to COVID-19 or a person had contracted COVID-19 in the workplace. When deciding on whether a RIDDOR report is required, a “responsible person” within the organisation should make an informed decision on whether a confirmed diagnosis of COVID-19 is likely to have been due to exposure at work.
Sky News reported this week (10 June 2020) that the HSE has so far received 91 RIDDOR reports in relation to deaths of healthcare and social care workers from COVID-19. Bearing in mind the HSE only investigated a total of 147 workplaces deaths in 2019, it’s clear that COVID-19 deaths have already caused a significant increase in the number of RIDDOR reports of deaths.
The HSE may not of course carry out a full investigation into every RIDDOR report it receives, depending on the circumstances of each case – whether that is the case for COVID-19 RIDDOR reports remains to be seen.
What the report didn’t cover however is the number of RIDDOR reports of outbreaks or transmission of COVID-19 for health and social care workers where deaths did not occur. Bearing in mind that the death rate for COVID-19 generally is a lot less than the numbers of persons who contract it but go on to make a recovery, it does seem likely that there may be a significant number of RIDDOR reports for employees who have recovered.
It is also interesting to note that the HSE guidance on RIDDOR reporting refers to reporting when there is a “confirmed diagnosis” of COVID-19. As we are all well aware, testing for COVID-19 has been a controversial issue and it is only recently that more widespread testing has been available generally. Therefore we suspect there may have been deaths and outbreaks of COVID-19 where employees did not have a “confirmed diagnosis” but may have had some of the typical symptoms of the virus. In addition, there have been suggestions that COVID-19 testing may not be wholly accurate due to issues such as the timing of the test, how the swab was taken and the handling of the specimens.
So where does this leave employers when deciding whether to RIDDOR report a death or transmission as a result of COVID-19 caused by occupational exposure? Each case will depend on its own factual scenarios, but certainly in the health and social care sphere where employees may have been in close contact with residents and patients and where there are a number of cases of COVID-19, it would seem prudent to make a RIDDOR report as a precaution, especially since not making RIDDOR reports when required can attract penalties. Whether this is likely to lead to any sort of enforcement action is unclear at present, and again this would depend on the specific circumstances of each case. However there are a range of actions available to the HSE including improvement and/or prohibition notices along with fines (the level of which is linked to the turnover of the care provider) plus payment of HSE fees. The HSE will clearly be focused on PPE provision and risk assessments undertaken to try reduce transmission.
In terms of the civil claims market, claims may be made in relation to employee deaths but also by employees who contracted COVID-19 and have recovered albeit the lack of a RIDDOR report and/or confirmed diagnosis may not be a bar to a civil claim, depending on the trajectory of an individual’s disease.
Next week we are going to look at the RIDDOR requirements for care providers in more detail.
Jennifer Johnston, Associate, BLM