The provision of personal protective equipment to front line workers has become one of the most reported issues during the course of this global pandemic. This article considers the legal rights of workers to this equipment.
As the coronavirus (COVID-19) pandemic has spread across the UK, repeated concerns have been raised by trade unions, politicians and the media about the lack of PPE for a range of key workers – from healthcare and retail to refuse workers and those working in public transport. Those working in healthcare and public transport in particular have been heavily exposed and succumbed to high levels of illness and fatalities.
In England and Wales all workers have a right to suitable PPE under the Personal Protective Equipment at Work Regulations 1992. Regulation 4 (1) provides that “every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health and safety except where and to the extent such a risk has been adequately controlled by other means which are equally or more effective.”
The regulations go on to make clear that PPE is not ‘suitable’ unless it is appropriate for the risks involved and the conditions at the place where exposure to the risks may occur. It is also required to be effective to prevent, or adequately control, the risks involved without increasing the overall risk. There is, for instance, great concern that much equipment is based on the male body and is likely to be ill-fitting, uncomfortable and perhaps less efficient for women.
Regulation 3 (1) of the Management of Health and Safety at Work Regulations 1999 (the ‘1999 Regulations’) provides that:
Every employer shall make a suitable and sufficient assessment of-
- the risks to the health and safety of his employees to which they are exposed whilst they are at work; and
- the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking.
for the purpose of identifying the measures he needs to take……’
Any ‘sufficient’ assessment would inevitably conclude that adequate PPE must be a pre-requisite for front line key workers.
Liability under the 1992 Regulations is strict, but unfortunately since the introduction of s.69 of the Enterprise and Regulatory Reform Act 2013, breaches are no longer actionable in themselves and neither are they under The Management of Health and Safety at Work Regulations 1999 either. In other words the 2013 legislation removed the ability for anyone to sue directly in the civil courts for any breach of the statutory provisions themselves.
However, for claims against emanations of the state, it may still be possible to rely on the underlying EU Directive. Moreover, the common law duty to provide employees with a reasonably safe workplace and safe system of work remains and the PPE requirements under the regulations continue to inform the ambit and scope of this common law duty and therefore remain relevant. A claim in negligence over the inadequate provision of PPE would need to address how foreseeable it was that PPE would be required on such a scale and whether appropriate steps were taken to obtain it. The position on whether adequate steps were taken by government to obtain PPE remains unclear but readers will be well aware of stories circulating that, for example, the UK government “missed out” on opportunities to join an EU medical supplies consortium, which would have secured stocks of PPE in addition to ventilators and laboratory supplies.
A claim in negligence relating to the provision of inadequate PPE will nevertheless have to satisfy various legal criteria. A Claimant would need to be able to show that the failure to provide adequate PPE caused or materially contributed to their illness. That may not be straightforward given the way coronavirus (COVID-19) is transmitted, however courts have been prepared to consider other ways in which causation can be established. There is case law providing that where it is impossible to say that a breach caused or contributed to an injury (where the illness or injury may have occurred anyway), it is sufficient to establish that a breach materially increased the risk of injury. Supportive expert medical and perhaps epidemiological evidence will be essential.
A claim for injury is not necessarily directly after the event and will not directly address any on-going breach of statutory duty. Stopping the breach could only be possible by way of an injunction.
An alternative claim may be pursuable on the basis of a breach of the worker’s contract of employment. The argument would be that compliance with the standards of Regulations like the Management of Health and Safety at Work Regulations 1999 and the Personal Protective Equipment at Work Regulations 1992 is an aspect of the implied duty of trust and confidence, and that those duties are enforceable pre-emptively through the contract of employment. The applicable standards for the purpose of those Regulations would come from the guidance issued by government entitled Social distancing in the workplace during coronavirus (COVID-19): Sector Guidance which specifically addresses appropriate measures for different sectors of the economy.
The Human Rights Act 1998 is also likely to be highly relevant to any legal challenge – particularly against any public sector employer or the government. In a claim under the Human Rights Act, both an injunction and damages would be available.
There are potentially powerful human rights arguments on behalf of workers currently being denied any, or any adequate, PPE and whose lives are consequently at risk. Academics, including Dr Elizabeth Stubbins Bates, have argued that a failure to provide adequate PPE for NHS workers in the current crisis may violate the UK’s positive obligation to protect life under Article 2 ECHR. James Robottom has written for the UK Labour Law Blog that Article 2 entails not just a negative duty on the state not to take life, but also to impose upon it a positive duty to protect life and to make that right effective. There is a general substantive duty to protect life whereby the state is required to implement a legislative and administrative framework which protects the right to life and there is an operational duty to take preventative measures to protect individuals in specific circumstances from “real and immediate” risks to their lives.
Articles shared by Thompsons relating to coronavirus (COVID-19) are correct at the time of publication. You should check the government’s guidelines for the latest information and advice at https://www.gov.uk/coronavirus.