UK & Europe
As the issue of personal protective equipment (PPE) availability, or lack of, becomes more and more prevalent, we look at the challenges which this presents to employers as well as offering some practical guidance to ensure compliance of the employer's legal duties.
Authors: Tony Cawley, Mary Edis & Scott Taylor
The provision of adequate personal protective equipment (PPE) to health and social care workers in the context of the current COVID-19 pandemic raises numerous challenges including:
Examples of the main types of PPE currently recommended by Public Health England include:
Eye and face protection can be achieved by the use of any one of the following:
• surgical mask with integrated visor
• full face shield or visor
• polycarbonate safety spectacles or equivalent
While performing AGPs, a full-face shield or visor is recommended. Eye and face protection should be discarded and replaced and not be subject to continued use if damaged or soiled (for example, with secretions).
Long sleeved disposable fluid repellent gowns must be worn when a disposable plastic apron provides inadequate cover of staff uniform or clothes for the procedure or task being performed, and when there is a risk of splashing of body fluids such as during AGPs in higher risk areas or in operative procedures.
An employer has statutory and common law duties to ensure the health, safety and welfare at work of its employees. The statutory duties are governed by the Health & Safety at Work Act 1974 and the various health and safety Regulations which impose specific duties on employers.
Relevant regulations in respect of PPE include:
In respect of COSHH a biological agent is expressly included within the definition of substances hazardous to health. Regulation 2(1) defines these as “a micro-organism, cell culture or human endoparasite, whether or not genetically modified, which may cause infection, allergy, toxicity or otherwise create a hazard to human health”. The definition therefore covers infectious harmful viruses such as COVID-19, insofar as exposure could be shown to arise "out of or in connection with work at the workplace". So the role of the workplace in the transmission of the disease becomes highly relevant.
The statutory requirement to assess risks contained generally within reg.3 of the Management of Health and Safety at Work Regulations 1999, and within COSHH specifically at reg.6, is a cornerstone of the employer's duty. For PPE equipment to be suitable it has to be at least appropriate for the risk and, as far as practicable, effective to prevent or adequately control the risk. The identification of risk is therefore essential to the judgment of suitability.
Breach of health and safety Regulations attracts criminal sanctions but it may be that given the current recognised shortage of PPE, the Health and Safety Executive would not consider it in the public interest to prosecute for failure to comply with legislation. Currently individual COVID-19 cases are not classified as RIDDOR reportable and so would not be investigated.
However, concern is increasing with regard to inadequate supplies of PPE to NHS staff and on 31st March 2020 Dame Donna Kinnar, chief executive of the Royal College of Nursing wrote to the HSE requesting its active intervention in the light of regulatory breaches.
A major change to civil liability for breach of statutory duty, including liability under the many health and safety regulations, was made by s.69 of the Enterprise and Regulatory Reform Act 2013 which amended s47 of the Health and Safety at Work Act 1974. As a result breach of a duty imposed by an existing statutory provision is no longer actionable as a civil claim (except in certain circumstances). Claimants are therefore obliged to prove negligence under common law principles.
The government’s rationale for this change was to ensure that a claim for damages for breach of health and safety duties could only succeed where an injured employee can prove that the employer has been negligent. This was part of its drive to reduce the “burden of health and safety”, and the perception that there is unfairness when regulations impose a strict duty on employers rendering them liable to pay compensation despite reasonable care having been taken to protect employees from harm.
However, it remains arguable that assessment of what constitutes reasonable care for the safety of employees in the tort of negligence should be mediated by reference to the health and safety legislation. After all, if it is a criminal offence to fail to comply with the relevant statutory duty it is difficult to see how the employer can argue that it was reasonable to breach the duty.
Employers also owe a common law duty under four heads: the provision of safe staff; safe equipment; safe place of work; and a safe system of work.
The provision of appropriate safety equipment is a key part of the duty. The extent of the duty depends, amongst other things, on the risk of injury, the gravity of any injury which may result, the difficulty of providing equipment and the availability of the protective equipment.
There may be liability if PPE is not readily available with the result that employees are obliged to take the chance of not using it. In the hospital context, however, where the employer also owes duties to other parties such as patients, complex questions may arise concerning the nature of the different duties owed to employees and to patients.
Claimants will have to prove causation. Whilst arguably it may be difficult for a claimant to establish that he/she contracted COVID-19 from his/her place of work, it is not impossible and a claimant would argue that had he/she not been at work he/she would have been self-isolating at home and protected from exposure.
It is not difficult to imagine that the larger claimant personal injury firms of solicitors are already gearing up to advertise for clients who claim to have been harmed by inadequate protection. Healthcare professionals are at the frontline and have a variety of organisations to whom they may turn to back any complaint and fund litigation.
A large group action seems inevitable. Within such a group action the evidence will be wide-ranging although its precise nature is, as yet, unknown. Obvious candidates as complainants would be healthcare staff and patients but the potential size of any group action is huge.
There may be direct action against theg government or NHS, for example for breach of statutory duty, and there will also almost certainly be actions against individual Trusts based on standard principles of employer’s liability.
The Daily Telegraph reported on 2 April 2020 that families of NHS staff who have died due to COVID-19 are to be offered compensation, whether or not they are classed as front-line staff, under a scheme being finalised by government ministers. No figure has yet been agreed for the amount of compensation but the Daily Telegraph understood that it is likely to be around £60,000 per family. However, it is likely that some families may choose to bring a claim against the NHS in negligence if they believe a lack of personal protective equipment caused or materially contributed to the loss of a relative through contracting the virus, as the damages award would be likely to be significantly higher than any such government compensation scheme.
For the time being, employers in the healthcare sector would be well-advised, insofar as reasonably practicable, to take measures including but not limited to the following: