Employers’ Liability and PPE

As employees gradually return to work, employers face new challenges.  One of these is to ensure that their employees remain safe under their care in light of the Covid-19.  Many workplaces have found, and many more will find that they now require the use of some sort of Personal Protective Equipment (“PPE”).  Prior to the Covid-19 pandemic only workplaces such as construction sites and healthcare facilities were required to provide employees with suitable and appropriate PPE.  We are now faced with all workplaces being a potential hazard in relation to the spread and contamination of Covid-19.  Most, if not all, employers now face the reality of having to make efforts to minimise this new risk.  As a consequence of this risk, we will likely see employees making claims for personal injury, should they contract the virus at work.  These employees will need to be able to show that their employer had not taken appropriate measures to reduce this risk, and therefore were negligent in their duty of care. 

The Health and Safety at Work (Jersey) Law 1989 (the “Law”) imposes a general duty upon employers to “ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employer’s employees.”  This includes:

• the identification and assessment of risks to health and safety at work;
• the provision and maintenance of safe systems of work;
• the provision of information, instruction, training and supervision to ensure the health and safety of employees; and
• the provision and maintenance of a working environment that is practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. 

Additional provisions include the requirement to keep Health and Safety policies and risk assessments up to date, as well as notifying employees of such changes. 

The Health and Safety at Work (Construction) (Personal Protective Equipment) (Jersey) Regulations 2002 is the only legislation that specifically requires the use of PPE.  However, this Regulation specifically applies to work on construction sites only. 

PPE is currently a global hot topic due to the outbreak of Covid-19, which has been helped somewhat by the realisation in the UK (and elsewhere) that necessary protective gear is in short supply.  Provision of PPE in response to Covid-19 will be necessary in order to prevent the spread of the virus, as well as protecting employees.  As restrictions are being relaxed the demand on PPE will only increase. 

However, employers will want to address these risks as best as they can.  It is likely that existing risk assessments will not address the risks posed by Covid-19, and new ones will need to be prepared.  Additionally, employers will need to be aware of particular individuals, who are particularly vulnerable to the virus, which may include preparing employee-specific risk assessments. 

It will also be important for employers to oblige by the ongoing social distancing measures, as part of providing a safe system of work.  Employees will need to be clear on specific measures in place to deal with the new potential risks.  Employers will need to ask whether their workplaces contain up-to-date safe systems of working?

 Employers will also need to reconsider their information, instruction and training for all employees as they begin to enter back into work.  For instance, guidance should include how PPE should be fitted to guard against the risk of contracting the virus and how PPE should be kept when not being used.  Training on the cleaning and disposal of PPE should also be considered. 

It must be noted that employees do have a counter-duty to ensure that PPE is used as per their training and instruction. 

We seem to be learning more about Covid-19 every day.  One thing we are sure about is the alarmingly high contagious element of the virus.  Employees therefore may find it difficult to prove that their employer breached a of duty of care for them in failing to provide adequate PPE or some form of safe working environment, which caused them to contract Covid-19.  Despite this challenge, employees will only need to prove the cause of Covid-19 was, on the balance of probabilities, due to the failure of care of their employer, i.e. they were negligent.   Precise arguments as to the cause of the infection will not be necessary. 

 We expect the Health and Safety Inspectorate to release guidance on the appropriate use of PPE while at work in the Covid-19 era.  However, in order to minimise a claim for personal injury, employers will be prudent to keep well documented evidence showing all reasonable practicable steps taken to fulfil their duties.  For instance, making a note of any attempts to obtain PPE, keeping evidence of stocks, and ensuring records on training are kept up to date.  Overall, the employer will want to show that they were diligent in doing the very best for their employees through the new challenge of Covid-19.