Perhaps understandably, during the first wave of the pandemic, the press largely focused on the tragic deaths of NHS and healthcare workers caused by work-related exposure to COVID-19. Regrettably, many other categories of workers have since died and suffered serious illness as a result of being exposed to coronavirus in the course of their employment. Those workers include bus drivers, travel sector workers, and social care staff.
When the final statistics are made public other frontline staff, including retail workers and delivery drivers, who were deemed essential workers and had no choice but to go out to work, will undoubtedly have suffered in the same ways after contracting COVID-19.
In his blog, COVID-19 and the Duty of Care, Bruce Shields acknowledges that despite fatalities being work-related, there will be no Fatal Accident Inquiry for any of these deaths. As the law stands, employers must only report a work-related fatality to the Procurator Fiscal when it has occurred as the result of "an accident" in the course of employment and, at the time of writing, the Crown Office Procurator Fiscal Service has decided to suspend any requirement to report COVID-19 work-related deaths.
If you want to discuss your situation in confidence you can Talk to Thompsons today. We are here to provide all the information you need. And to answer questions about civil compensation claims, our "Can I Make a Claim?" page looks at who you can claim against and what you can claim for, as well as other COVID-19-related issues.
Duty of care
Contrary to what some people may believe, the hastily enacted coronavirus and lockdown legislation did not relieve employers and duty holders of their duty of care to employees; coronavirus was not an unforeseeable risk and employers' obligations to reduce the risk of injury and illness as far as reasonably practicable remained.
The principal pieces of legislation governing employee protection from hazardous substances, in this case 'coronavirus', are the Control of Substances Hazardous to Health Regulations (COSHH) 2002 and the Personal Protective Equipment at Work Regulations (PPER) 1992, and all reasonable measures to enforce them must have been put in place by employers during the crisis.
Personal Protective Equipment (PPE) and other methods of control
The above regulations provide that Personal Protective Equipment (PPE) should be the last defence in protecting workers from hazards, and the primary duty for employers is to control exposure through other methods – screens, hand washing and sanitising facilities, one-way traffic systems and physical distancing measures. However, we know that some of these methods are not practicable for frontline healthcare workers and so the role of PPE, and the lack of it, became a headline story during the coronavirus outbreak.
Another significant area of exposure control is testing: testing for the presence of COVID-19 in a workplace and testing of those who have been exposed to coronavirus. Coronavirus testing, alongside PPE, was another heavily reported topic during the outbreak, with many keyworkers finding it impossible to get tested initially and anecdotal evidence suggesting that early test results were not always accurate.
The number of people exposed to the virus as well as the frequency and duration of exposure should have been monitored where practicable – for instance in hospitals and where COVID-19 is present in care homes.
Employees should receive relevant training in respect of ongoing risks, such as how to use PPE and hand hygiene best practice, as well as other practical information which could be in form of workplace signage, as well as written guidance such as individual workplace policy.
PPE to prevent exposure
As the name suggests, PPE is all equipment which can be used to protect the wearer from exposure to hazards. This includes, face masks, goggles, gloves, aprons, gowns and overalls. It should be used when there are no other methods for control – it is the last line of defence.
Sadly, during the COVID-19 pandemic, many workers were unable to obtain suitable PPE and enough PPE. Most items are intended to be single-use, but due to shortages in many workplaces, workers were forced to re-use items, or use types of PPE not intended for the high-risk work they were carrying out.
According to a report by the TUC, "most PPE is based on the sizes and characteristics of male populations from certain countries in Europe and the United States". This means that most women and large sections of the male workforce found that the initial PPE provision did not provide a suitable fit and could be uncomfortable and even problematic to work.
Many of us will have seen pictures of workers having to use duct tape to hold gloves and gowns in place, as well as the painful-looking marks on faces of workers who had to tie their facemask extremely tightly, purely to obtain a reasonable fit.
In the following video, Claire Campbell explains the duty an employer has to employees in relation to providing protection against hazardous substances, including coronavirus.
Not every employer or workplace will have been able to protect every worker, and the tragic toll amongst key workers made significant headlines. However, some of the deaths should and could have been prevented if full and adequate measures had been taken more quickly and with better scientific advice.
As we have already mentioned, in Scotland no employer, company or public body is likely to be prosecuted by the Procurator Fiscal for breach of Health & Safety Legislation in any case of injury or death arising from COVID-19.
The only recourse to justice left open to the victims and the families of those who have suffered from and died after contracting COVID-19 due to the negligence of others is the pursuit of compensation through the civil courts.
Talk to Thompsons
Thompsons Solicitors in Scotland is currently handling the civil cases for a number of people affected by COVID-19. You can find out more on our COVID-19 Case Types page.
Your safety is paramount: when going out to work, when out shopping, when providing care to others. If you have been affected by COVID-19, whether as an employee, a service user, or as a member of the general public, Thompsons is here to help.
Call 0800 0891 331 or fill in our online claim form by clicking on the button above, so we can call you back to discuss your circumstances.