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Alec Hancock – Consultant CILEx Laywer

I was asked this recently by someone whose employer made it clear they were expecting people to attend work unless they were showing signs of illness.

The truth is that COVID-19 (the name given to this particular strain of Coronavirus) is still not really understood and the world is still trying to work out how to deal with it and prevent further loss of life.

It would seem that the death ratio is exceptionally low but that doesn’t mean that avoiding infection is everyone’s priority.

Each country appears to be dealing with it in their own way, with most countries closing schools and banning large events with more than 500 people. The UK however appears to be more reserved, slightly behind but now also just as cautious – only now closing schools etc.

There is a range of opinion regarding COVID-19 but what is clear is that it is highly infectious. Although it appears that the incubation period is, on average, several days, it can be as much as 14 days.

As always, an employer owes a non-delegable duty of care to ensure its employees are reasonable safe. However it is a reasonable duty and not absolute.

An employer is also liable for the actions of their employees, save for when they  act on a frolic of their own – however it has been demonstrated that the court is willing to accept some acts by an individual as being in the course of employment. It is possible an employer could be responsible for an employee’s reckless behaviour (such as not washing their hands or worse, coming into work even thought they are showing symptoms).

It appears that the problem with COVID-19 is that it can be spread quickly before symptoms even appear – fellow colleagues could inadvertently infect others in the workplace without even being aware their were infected.

However people are now aware that if they do not wash their hands and take appropriate steps with their own hygiene then they may be subject to infection or risk infecting others if they are yet to be symptomatic.

That doesn’t mean that there will be liability. An employee can be exposed to COVID-19 in other places other than their place of work. Supermarkets, shops, pubs and even your can be a possible source. It would be very difficult for an employee to prove that the infection was from someone at work, let alone whether the employer was negligent in allowing it to happen.

Even if someone was in a hotel abroad and there was a COVID-19 outbreak it is unlikely that there would be any liability on the tour operator under English law – given how contagious it is.

There maybe some unique circumstances where an employer maybe liable.

I could envisage a situation where employees are told specifically not to come into work if they have symptoms. Another employee, not wanting to lose out on money (worries they cannot afford to live on SSP). The employer could be vicariously liable for that employee. I would hate to think that someone would risk others who could have underlying health problems or that an employer wouldn’t pay full pay etc to ensure people do not come into work if possibly infected.

Rebecca and I are happy to discuss matters with anyone if they wish to find out whether they have a claim – we would always welcome hearing from you in full before making a decision.