Richard Reichman and Sihana Cara discuss Covid-19 and if there is a risk of businesses being shut down or prosecuted for exposure at work.

Since the Covid-19 lockdown eased further on 4 July 2020, more businesses have been able to recommence operating, or operating closer to how they did pre-lockdown. As this and further future adaptations take place, employers will be keen to ensure the safety of their employees and members of the public, and understand the risks if they fail to do so.

The UK Government and Health and Safety Executive ('HSE') have made it clear that businesses will be regulated under existing health and safety legislation for risks to safety posed by Covid-19 at work. In its guidance regarding making workplaces "Covid-secure", the HSE says that "as an employer, you must protect people from harm. This includes taking reasonable steps to protect your workers and others from coronavirus". The Health and Safety at Work etc Act 1974 ('the Act') places duties on employers to ensure the health, safety and welfare of employees in connection with work. Employers and the self-employed are also obliged to conduct their businesses in a manner that does not expose the public to health or safety risks. Importantly, these duties are both qualified by the phrase "so far as is reasonably practicable" (a concept of balancing risk and cost, analogous to the pandemic response globally).

Although the HSE's analysis is not determinative, it considers Covid-19 to be a "substance hazardous to health" by virtue of it falling within the definition of a "biological agent" under the Control of Substances Hazardous to Health Regulations 2002. It appears that the HSE is seeking to treat Covid-19 differently from other diseases in general circulation; the position of the boundary between exposure from mere presence at work on the one hand, and work-related exposure on the other hand is unclear.

For most employers, a risk of exposure to Covid-19 is not created by its work activities; it is a disease common in the community to which employees are similarly exposed outside of work. Accordingly, there may be challenges to the use of health and safety legislation to address Covid-19 risks.

There is, of course, a pressing need for there to be regulation in place to control the risks of the current pandemic. However, the existing legislation sets the compliance bar high with stringent penalties in default and does not appear to have been previously used in this way. Employers will reasonably worry that with governments around the world struggling to respond coherently to the pandemic, they may be viewed unduly harshly with the benefit of hindsight.

The HSE's web pages contain guidance on complying with health and safety duties. There is more extensive industry and sector-specific Covid-19 guidance available on the UK Government web pages. The available guidance is indicative of what is reasonably practicable, such that any deviation would require justification. Businesses will need carefully to monitor the evolving guidance in this fluid situation to ensure that they remain compliant.

If enforcement action is considered appropriate, an HSE inspector can issue an improvement notice or a prohibition notice. An improvement notice requires contraventions to be remedied within a specified period. A prohibition notice can only be served if there is a risk of serious personal injury and requires the relevant activities to be ceased until the situation is rectified, potentially leading to temporary closure. The contravention of an enforcement notice is an offence and can result in prosecution.

Enforcement notices can be appealed to the Employment Tribunal and we may see challenges, for example based on the evolving understanding of the risks posed by Covid-19.

If convicted of the main health and safety offences under the Act, corporates face a maximum penalty of an unlimited fine. If offences by corporates are committed with senior officers' consent or connivance, or are attributable to their neglect, these individuals themselves can be fined or imprisoned for up to 2 years.

Employers could also be prosecuted for corporate manslaughter. Under the Corporate Manslaughter and Corporate Homicide Act 2007, an organisation is guilty of an offence if the way in which its activities are managed or organised causes the death of a person and amounts to a gross breach of a relevant duty of care. The way in which its activities are managed or organised by its senior management must be a substantial element of the breach. Individuals cannot commit the offence of corporate manslaughter, but senior officers and other individuals remain liable of being prosecuted for gross negligence manslaughter.

The HSE's comments to date are indicative of a measured enforcement approach, at least initially. During a Work and Pensions Committee hearing in May 2020, the HSE indicated that employers were being given the opportunity to correct mistakes through informal advice. Following the hearing, the HSE confirmed that only two improvement notices and no prohibition notices had been served.

However, attitudes can change over time and with external pressure. For example, there were recently demands for Tönnies' factory in Germany, Europe's largest meat-processing plant, to be held to account after 1,500 of its workers contracted Covid-19 in a mass outbreak. The public and businesses in a region which, for example, needs to return to stringent lockdown measures are likely to be vociferous in demanding action. Indeed, the HSE is already facing pressure from the Department for Work and Pensions to "send a clear message to the public that raising concerns with HSE does result in action against employers where necessary". In addition, consistency between the regulatory authorities is a concern.

The HSE is liaising with PHE and would appear to have more readily available expert input; local authorities have responsibilities for enforcing the legislation in lower-risk workplaces but they are less equipped but resourced.

It may be said that the courts will ensure that correct decisions are made. However, challenging an enforcement notice or defending a criminal prosecution is a time-consuming and costly process, which businesses particularly need to avoid at this challenging time.

Bearing in mind all the present circumstances, an influx of Covid-19- related enforcement action, particularly for companies acting reasonably and attempting to follow the available guidance, is considered unlikely. However, the likelihood may rise over time. Whilst companies and individuals are exposed to the risk of prosecution, it is presently anticipated that prosecutions will generally be reserved for the most egregious cases, for example where guidance and warnings have been deliberately ignored and large numbers of people have been affected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.