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For companies bringing employees back to work during the Covid-19 pandemic careful consideration is required to ensure that guidelines are met.

Under the Health and Safety at Work, etc. Act 1974 (HSWA), employers have the duty to safeguard, so far as is reasonably practicable, the health and safety of their employees at work. They have a similar duty to  persons other than their employees (including visitors to their premises and members of the public). Failure to do so may give rise to criminal enforcement action against the employer and/or a potential claim for compensation under civil law.

Senior managers and directors should be aware that they could also face personal criminal liability if the organisation commits a health and safety breach due to that senior individual’s act or omission, particularly if they have not been as proactive as someone in their position ought reasonably to have been. This could mean significantly high fines for companies and possible imprisonment for individuals in the worst cases.

The failings of senior management must have formed a substantial element in the breach. However, the failings at senior management level do not, of themselves, have to amount to a gross breach of duty. Liability for the offence is assessed by looking at the failings of the organisation as a whole.

The better news for Directors is that , should an employee contract Covid-19, it will be extremely difficult to establish that a person has definitively contracted the virus in the workplace. The prosecution must prove that the breach of duty caused the death. The test is whether the breach made a more than minimal contribution to the death.

The link below gives additional advice on working safely throughout the coronavirus.

https://www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm

For more information on the liability of Directors or other matters covered by this article please contact Dominic Hollingsworth on dominic.hollingsworth@wollens.co.uk or call 01803 225130