One of the totemic issues that has emerged over recent weeks as part of the COVID-19 pandemic is the provision of ‘appropriate’ and ‘sufficient’ Personal Protective Equipment (“PPE”), above all to those providing hands-on care to patients in hospital and to residents in care homes.
Leaving aside criminal liability for any breach of Health and Safety Regulations (in particular, the Personal Protective Equipment at Work Regulations 1992), all employers have common law duties towards their employees. The tortious liability of an employer to an employee is a duty, which is personal to the employer, to “exercise due care and skill to provide a competent staff of men, adequate plant and materials, a proper system of work and effective supervision”: A(a Child) v MOD [2003] PIQR P33 at [27] citing Wilsons and Clyde Coal Co v English [1938] AC 57 and particularly Lord Wright at p.78 where the duty was stated to be “to take reasonable care for the safety of his workmen.”
In Smith v The National Farmers Union Mutual Insurance Society [2019] NICA 63, the Court of Appeal in Northern Ireland held at [25] that:
“As we have indicated a feature of the employer’s duty of care to his employee is its non-delegable nature. That is an aspect of the special responsibility of an employer to its employee which provides a policy reason for the employer to retain responsibility. As a result the employer can delegate the performance of the duty to others, such as an independent contractor, but not responsibility for its negligent performance. The duty of care is not fulfilled simply by entrusting its performance to another even if reasonable care is taken in selecting that other.”
In Kennedy v Cordia Services LLP [2016] 1 WLR 597, the Supreme Court noted at [110-112] that:
“…in more recent times it has become generally recognised that a reasonably prudent employer will conduct a risk assessment in connection with its operations so that it can take suitable precautions to avoid injury to its employees. In many circumstances, as in those of the present case, a statutory duty to conduct such an assessment has been imposed. The requirement to carry out such an assessment, whether statutory or not, forms the context in which the employer has to take precautions in the exercise of reasonable care for the safety of its employees…
…It follows that the employer’s duty is no longer confined to taking such precautions as are commonly taken or, as Lord Dunedin put it, such other precautions as are so obviously wanted that it would be folly in anyone to neglect to provide them. A negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious…
In the present case, Cordia were aware of a history of accidents each year due to their home carers slipping on snow and ice, and they were aware that the consequences of such accidents were potentially serious. Quite apart from the duty to carry out a risk assessment, those circumstances were themselves sufficient to lead an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing that risk.”
Each and every NHS Trust and care home has, therefore, a duty to assess the relevant risk to its employees from COVID-19 and to provide adequate materials, including PPE, in order to ensure a safe system and place of work. It should be noted that the test is not one of strict liability, but of the usual tortious duty to take reasonable steps. Nevertheless, as the Supreme Court noted in Kennedy in respect of the PPE Regulations, as to whether there had been a breach of the common law duties of an employer:
“The expansion of the statutory duties imposed on employers in the field of health and safety has given rise to a body of knowledge and experience in this field, which, as we explain later in this judgment, creates the context in which the court has to assess an employer’s performance of its common law duty of care.”
Possible issues that might be relevant to any claim where an employee argued that they were not given adequate protection leading to infection with COVID-19 include:
1. The extent to which employers were or ought to have been aware as a result of prior planning for possible pandemics that a very large quantity of specialised PPE would be required across the country.
2. The extent to which employers have been following external guidance from NHS England, Public Health England or indeed the World Health Organisation, and the extent to which it was reasonable for them to rely on such guidance rather than their own individualised risk assessments taking into consideration the local aspects of the general threat from COVID-19 particular to their own place and systems of work.
3. Whether reasonable measures have been taken in recent weeks to acquire, distribute, and manage supplies of PPE.
One potentially difficult area will be the tension between the fact that each NHS Trust (rather than ‘the NHS’ generally) is likely to be seen as the relevant ‘employer’ for the purpose of employment law (and other aspects of tort such as vicarious liability) but might not be deemed to be the relevant (or the only) employer for the purpose of employer’s liability in the context of COVID-19. When it comes to the assessment of risk for PPE and the consequent provision of PPE either pre-pandemic or during the pandemic (i.e. who has had responsibility for assessing and responding to the particular risk of infection from an infectious disease such as COVID-19) there does appear to be an extent to which there has been national level input into what is currently happening within individual NHS trusts. For example, the most recent detailed revised guidance from Public Health England and NHS England has set out the PPE requirements deemed necessary in healthcare contexts. Further, the distribution of PPE has become a national effort, assisted by the MOD. As noted by the Court of Appeal in Lane v The Shire Roofing Company [1995] PIQR 417, 421, the fundamental issue in employer’s liability claims is that they must be considered in “the context of who is responsible for the overall safety of the men doing the work in question.”
Finally, it should also be noted that where an employer is a public authority under Article 2 ECHR, the State can be required to take reasonable preventative operational measures to safeguard lives of those within its jurisdiction against real and immediate risks to life. Breaches of that duty can be a result of ‘systemic’ or ‘operational’ failings. In the context of environmental disasters over which States have no control, the obligation of the State to take preventive operational measures comes down to adopting measures to reinforce the State’s capacity to deal with the unexpected and violent nature of natural phenomena in order to reduce their catastrophic impact to a minimum: M. Özel and Others v Turkey (Application no 14350/05).
The relevance of Article 2 in the context of COVID-19 potentially lies in two areas in particular:
(1) in general whether prior to 2020 the State took appropriate measures in light of its actual or constructive knowledge to deal with the potentially catastrophic impact of a pandemic such as COVID-19; and
(2) specifically whether appropriate planning and procurement was implemented prior to the onset of the pandemic with respect to the provision of PPE to NHS and other ‘frontline’ key workers (see the reference in Smith v MOD [2013] UKSC 41 to both the systemic and operational duties potentially applying to the procurement of protective military equipment).
