WorkLife 2.0: what is a UK employer’s duty of care during this pandemic?

Since their publication on 11 May 2020, much of the focus has, quite rightly, been on the UK government’s guidelines on working safely during COVID-19 ('the guidelines'). 

But, stepping back, what are a UK employer’s legal duties towards its own employees, to independent contractors and to visitors/others on their premises?

The key duties of employers 

At common law, it is clear that an employer has a duty of care towards its employees to take reasonable steps to prevent foreseeable harm occurring to them. What will constitute “reasonable steps” (and therefore the standard of care required) will always be a question of fact, and depend on the particular circumstances. Crucially, an employer’s duty is not to ensure employees’ absolute safety.

Under the Health and Safety at Work Act 1974 ('the HSWA'), UK employers also owe a statutory duty to ensure the health, safety and welfare of every employee and members of the public in the workplace 'so far as is reasonably practicable'. 

Sitting alongside the HSWA are a number of different regulations, including the Management of Health and Safety at Work Regulations 1999 (which crucially require employers to conduct risk assessments) and the Health and Safety (Display Screen Equipment) Regulations 1992 (which deal with the risks associated with using display screen equipment like computers and laptops).

In order to comply with its duties at common law and under statute, an employer must assess the risks in the workplace, set up a safe system of work and effectively implement that safe system of work. 

An employer’s duties both at common law and under statute are non-delegable – an employer cannot escape the responsibility of performing their duties by delegating or contracting them out to others.

There are three key factors which determine the standard of the common law duty of care owed by an employer: 

1. the standard of the reasonable company; 
2. the balance between the costs and benefits of taking precautions; and 
3. common practice and expectations.  

While the guidelines are not legally binding, they intend to set out best practice for employers, employees and the self-employed as to how to work safely, and were produced in consultation with the Health and Safety Executive. 

It therefore seems logical that the guidelines will largely determine the standard of care owed by employers and, where an employer has closely followed the guidelines, it would be more difficult for a court to find that the standard of care had been breached.

Third parties – contractors and visitors

Unlike the position vis-à-vis an employee, there is no clear-cut authority for the general imposition of a duty of care in relation to a contractor. Whether a duty of care will arise will depend on the usual principles of tort law, per the case of Caparo v Dickman. 

The position is similar for visitors and others in the workplace – whether there is a common law duty of care, and if so the standard of that duty, will be determined on the facts. 

In practice, the health and safety legislation will impose the same obligations on employers as they owe to employees to keep contractors/visitors in the workplace safe 'so far as is reasonably practicable'. 

It will therefore be prudent for employers to take the same steps in relation to contractors/visitors as they are taking in relation to their own employees in terms of return to work arrangements.

In order to meet the required standard of care, an employer may want to consider steps to communicate its revised workplace health and safety arrangements to third parties before they come onto site. This would give the individuals time to digest and understand the arrangements and ensure that they can comply with them on site. 

Many employers will also consider asking third parties to confirm upon entering the workplace that they do not have COVID-19 symptoms (and have not recently been exposed to others with COVID-19 symptoms) and that they will comply with the social distancing / hygiene measures in place.

Working from home

It is clear that both the common law duty of care and statutory health and safety obligations extend to circumstances where an employee is working from home. This is particularly relevant during the current COVID-19 pandemic. 

While employers obviously have more limited control over home-working arrangements, employers have a duty to undertake risk assessments. Employers can delegate this duty to employees (eg by giving employees instructions as to how to carry out workstation assessments). But this is a non-delegable duty and so employers will be responsible for any shortcomings.

Many employers will choose to follow up with employees once they have conducted a workstation assessment to establish if any further action is required. Where necessary for health and safety reasons, employers will have an obligation to fund elements of home working equipment. This will be particularly crucial for any employees with a disability.

Mental health

An employer may also have a duty to care in relation to the psychological wellbeing of its employees, and potential civil liability may ensue where that duty is breached. 

The key case is Barber v Somerset County Council, where it was held that the relevant test was whether the employer had acted in a reasonable and prudent way, taking positive steps to have regard for the safety and well-being of its workers in the light of what it knew or should have known. 

Employers will therefore want to carefully monitor employees’ mental health and ensure that staff feel well-supported when working from home. 

It is worth noting that the guidelines do specifically draw attention to the importance of mental health during the COVID-19 pandemic.

Travelling to work

Aside from encouraging walking/cycling/driving to work rather than using public transport, the guidelines do not provide much insight into the duties owed by employers to their staff when commuting.

This is particularly sensitive and difficult given that there is a heightened risk of contracting COVID-19 in the enclosed confines of public transport, but employers simultaneously have limited control and oversight of employees’ commutes.

Where possible, encouraging employees to continue to work from home will of course eliminate some risk.

Whether there might be a common law duty of care owed by an employer to an employee on their commute is unclear and would again rely on the application of the Caparo test in the particular circumstances.

However, the case of Edwards v Secretary of State for Justice gives some support for the prospect that employees may be able to claim under s.44 of the Employment Rights Act 1996 where they refuse to attend work due to unsafe travel arrangements and then suffer detriment.