In-depth - claims: Covid-19 and employers’ liability

Although working from home helped to keep employees safe from the coronavirus, the shift in location brought its own set of risks. Not everyone’s home is suitable for work and months hunched over a laptop at the kitchen table or perched on the edge of a bed can result in some serious musculoskeletal problems. “The responsibility for employees’ health and safety remains with the employer, whether someone is in the office or working from home,” says John Dougherty, divisional director of risk management at James Hallam. “They must take this seriously.” 

Claims are yet to materialise but, as well as the potential for employees to seek compensation for musculoskeletal problems such as bad backs and neck injuries, there’s also a risk that there’ll be a spike in stress claims as a result of home working.  

Proper risk management can help employers safeguard their staff, wherever they’re working. Neil Grimes, claims director at Clear Insurance Management, explains: “We’re advising clients to conduct virtual ergonomic assessments and recommend that staff take regular breaks, even if it’s just standing up and walking around their home,” he explains. “If an employer has taken these steps, an employee will struggle to prove negligence.”  

Contracting Covid-19
While home working brings its own set of risks, employers could also face claims from employees saying they contracted Covid-19 in the workplace. Whether someone experienced particularly bad symptoms or was unfortunate enough to be hospitalised or develop Long Covid, many expect to see claims for compensation being brought against employers. 

Although some claims may stick, proving that an employee contracted Covid-19 in the workplace won’t be easy. Grimes doesn’t expect to see many successful claims. “I think there will be a lot of potential claims but it’s very difficult to prove where you caught Covid-19,” he says. “It could be while you’re travelling to work, or in your own home. Pinpointing it to the workplace won’t be easy.” 

Proving negligence
Alongside this, it will also be necessary to prove the employer was negligent. “If an employer followed the guidance, subject to best endeavours, it will be difficult to prove negligence,” says Andrew Wilkinson, director of technical claims at Aviva. “It’s much more difficult to prove than a fall in a supermarket but it’s important that employers take the right steps to manage this risk.” 

Although compensation may be in order in some cases, Peter Blanc, group CEO of Aston Lark, says it’s not in the public’s interest to start linking the workplace to a Covid-19 infection. “Follow this through to the extremes and you end up with crazy consequences that would prevent many businesses from operating,” he explains. “In the US, some states have introduced laws to prevent employers being sued for Covid-19 related claims. Businesses can’t trade with this uncertainty and I hope the UK courts will adopt a common-sense approach.”  

We’re advising clients to conduct virtual ergonomic assessments and recommend that staff take regular breaks, even if it’s just standing up and walking around their home,” he explains. “If an employer has taken these steps, an employee will struggle to prove negligence

Neil Grimes

Identifying outbreaks
The barriers associated with proving an employer was liable for a Covid-19 infection may mean it’s unlikely that there will be thousands of successful claims but Michelle Penn, partner at BLM, expects to see some. “If I was a claimant solicitor, I’d be looking for evidence of outbreaks,” she explains. “If you have two or more cases that can be linked, it could be easier to bring a case. Group litigation also makes it cheaper to bring a case as the costs can be shared.”   

One high profile example of this is the Driver and Vehicle Licensing Agency, where staff have voted for industrial action over health and safety concerns after more than 500 cases of Covid-19 were recorded at its Swansea office since September. 

The care homes sector is another potential target for the claimant solicitors. With Covid-19 patients being transferred into care homes from the NHS during the first few months of the pandemic, the sector saw high levels of fatalities from the virus among both residents and staff. 

Covering care homes
These factors have also started to influence the insurance market with brokers reporting problems placing cover for care homes. Ryan Legge, account executive at Hayes Parsons, says he’s seen significant premium rating increases in the care sector. “The risk of employees contracting Covid-19 due to a breach of duty by care homeowners is undoubtedly driving this,” he explains. “I worry that rates will not improve until insurers have confidence in proven Covid-19 risk management procedures and the disease is at lower and sustainable levels.” 

His view is echoed by Dougherty, who has seen limits on employers’ liability reduced to £5m for the care sector, down from the £10m enjoyed by clients in other sectors. “Insurers are very nervous,” he adds. “There are rumours in Scotland that the care home sector may be nationalised. The government would have to step in if care homes couldn’t get cover.”  

Legal protection 
With the possibility of legal action hanging over them, brokers have an important role to play in advising care homes about the steps they should take to minimise risk. This includes following government guidance on areas such as personal protective equipment, hygiene and ensuring staff don’t come into work when they have any symptoms. “It’s essential that care homes document everything they do to protect staff and residents,” adds Wilkinson. “This will show they did the right thing and help them defend any cases brought against them.” 

Taking these steps can ensure appropriate evidence is in place to prevent claims but Penn also cautions care homes against going too far. “If they’ve run a detailed investigation outlining what they should and shouldn’t have done, this information is all disclosable,” she explains. “It’s well-meaning to do this but might disadvantage them if a case is brought against them. Brokers should be highlighting this with their care home clients and recommending they seek appropriate legal advice.” 

Following guidance, keeping records and documenting it will be absolutely vital. There will be new things, such as hybrid working, to take into consideration

Andrew Wilkinson

Back to business
As the world returns to normal, brokers will also find themselves advising their clients on how to get their businesses fully operational again. Wilkinson says that risk management advice will be key. “Following guidance, keeping records and documenting it will be absolutely vital,” he says. “There will be new things, such as hybrid working, to take into consideration.” 

New risks are also emerging, with insurers already reporting claims for slips and trips on hand sanitiser or the one-way signs used to control movement in a building. Although these are largely on the public liability side, as more employees return to the workspace, there is the potential for claims on EL too. 

Plenty of information is available for brokers to share with their clients. As an example, Legge points to the information available on the HSE website, which includes a raft of health and safety templates to support clients. 

Insurers and brokers have also published their own guides. Aviva’s relaunched Risk Solutions website is a case in point and is designed to help brokers help clients of all sizes manage risk and also get back to business post pandemic.

Broker James Hallam has also published information, again to assist recovery following the pressures of Covid-19, as Doughty explains: “Understanding the risks, and taking appropriate steps to minimise them, will be essential as we move on from the pandemic.”