How could coronavirus impact employers’ liability claims?

Employers should be future proofing against the potential for claims from employees stating that they caught Covid-19 at work, advised Forum of Insurance Lawyers (FOIL) president and Plexus Law partner Anthony Baker.

He noted that he expects to see an increase in employers’ liability (EL) claims resulting from the coronavirus pandemic.

He continued: “At this difficult time for UK businesses and society generally, it is very important for employers to be aware that claims could potentially be brought in the future by employees, or members of the public, as a result of the Covid-19 pandemic.

“The actions, systems and processes that organisations undertake now to safeguard their staff, will determine whether claims are brought and, as importantly, whether they are successful.

“We have had enquiries from a number of major employers, across a range of industries, who are taking measures to protect their workforce but are also mindful about whether they could see future claims as a result of employees allegedly catching Covid-19 in the workplace.”

Managing the risks

In order to best defend these types of claims, Baker recommended that employers follow government guidance closely, communicate constantly with staff and draft risk assessments and mitigation strategies relative to Covid-19 and the business’s specific circumstances as a result of the pandemic.

“Documenting the measures taken will be key,” he added.

“For a Covid-19 claim to succeed then an individual claimant must establish that a breach of duty has occurred which will be difficult to do if government guidance is followed.

“It is therefore crucial for employers to take measures such as identifying high risk individuals, allowing those in non-essential roles to work from home, ensuring a two-metre distance between workers, etc.”

Furthermore, employers should ensure that leaders within the business adhere to and enforce any corporate measures that are implemented. If this doesn’t happen and an employee brings a claim, then the employer could be held vicariously liable for the negligence of a manager who fails to adhere to internal policies and procedures.

Causation

Another consideration for claimants in this instance will be the need to establish causation, or a causative link between the breach of duty in the workplace and the contracting of the Covid-19 virus – this is needed in order for a claim of this ilk to be successful.

Baker said: “In many cases it will not be clear when and where the virus was contracted and this will be a key issue within any subsequent legal dispute.

“At the same time, given the government advice around not testing for coronavirus and those with non-severe symptoms not requiring hospitalisation, but rather self-isolating and not seeking medical advice from a GP, then there will be a lack of any medical records to confirm the diagnosis.

“We will see whether the antibody testing will become widely available to establish if individuals have had the virus. The lack of current objective evidence could cause some difficulties.”

Potential for higher damages

Although Baker predicts that the overall frequency and volume of EL and public liability (PL) claims will fall due to the increase in home working and shrinking of the economy, he does, however, think that higher claims values could be sought for damages.

“In most cases [damages] will be relatively minimal if the symptoms are mild or moderate and most people do fully recover,” he said.

“However, tragically, we know that the virus does lead to many deaths and [the] long-term respiratory complications are not yet fully known, so there is also the risk of higher value claims being brought.”

Read more… What are the insurance implications for coronavirus-related nursery closures?

Not subscribed? Become a subscriber and access our premium content