Employers duty of care as businesses begin to emerge from lockdown

Employers duty of care as businesses begin to emerge from lockdown

Following the UK Government publishing a roadmap for how and when the country will adjust its response to easing lockdown on Sunday 10th May, there has been significant variations in how this guidance is being followed. Not only have governing bodies in Scotland, Wales and Northern Ireland decided to make no change to the lockdown at this stage, continuing with the previous message to stay at home, but business sectors are also moving at different paces.

However, one thing that most seem to be in agreement with is that a switch cannot simply be turned on overnight for businesses to open, no matter when that will be. While we are in a strange and unprecedented climate, the legal obligations on businesses are in no way relaxed – the emphasis is still very much on business owners to demonstrate a duty of care to their employees.

As well as following the most up to date guidance from the Government in relation to COVID-19, businesses also are required to adhere to all applicable health and safety legislation and regulations, including:

  • Health and Safety at Work Act 1974
  • Workplace (Health, Safety and Welfare) Regulations 1992
  • Management of Health and Safety at Work Regulations 1999
  • Fire Safety Orders, Acts and Regulations (dependent on your location)

This list is not exhaustive and business owners should ensure they’re aware of all regulations that apply to their business sector.

Your duty of care

Quite simply, an employer must be able to keep employees safe in their workplace. Prior to reopening your business, you should undertake a full COVID-19 risk assessment to ensure compliance with sector specific Government and HSE guidance.

If you are unable to open safely, for all or some business operations, you should not open or you could consider partial opening, only for those areas where you can observe and evidence safe practice.

Some particular things you need to think about include:

  • Induction and training – for all employees to ensure they understand any new limitations and restrictions and their responsibility to adhere to any new processes and procedures put in place
  • Risk assessments and safe systems of work – review, update, communicate and record communications as operations and activities may have changed
  • Flexible working – is it possible to introduce shift patterns, staggered start times or amended activities to help manage social distancing? This is particularly pertinent if your employees need to rely on public transport to get to work
  • Continued working from home – is it possible for some employees to continue to work from home?
  • Consultation with unions – businesses should consult with employees and relevant trade unions about their plans for returning to the workplace
  • Cleaning – you should consult with all interested parties regarding cleaning and sanitising of the workplace to ensure a high level of hygiene can be maintained
  • Sanitiser – you should ensure sanitising stations are available, including anti-bacterial handwash and hot water, or antibacterial sanitising gel
  • PPE – ensure if PPE is required to fulfil work duties, you have a plentiful and ongoing supply
  • Self-isolation – you should have a robust, clear procedure for employees to self-isolate and/or get tested should they, or any member of their household, display symptoms of COVID-19, or if they have been into contact with someone who has tested positive

Again, this is not an exhaustive list, so you should refer to Government and HSE guidance.

Looking after your employees

In addition to the physical health and safety of your employees, you also have a duty of care for their mental health. The current situation has naturally brought with it an increase in stress, so your employees mental wellbeing has never been more important.
It is imperative that employers’ reach out to their employees and consult with them on any suggested changes to the current working environment. People will naturally feel anxious and worried about returning to work following a sustained period of lockdown, and employers need to be understanding of this. They need to identify concerns and any impact on morale and loyalty in not having an engaged and happy workforce. There is a huge risk of a relationship break down if an employee feels that their employer has not created a safe working environment, not to mention the reputational damage this could result in.

It is worth noting that flexible working, including the ability to work from home on a permanent or more regular basis is likely to be the new standard employee benefit in many sectors, so you should think about what your approach to this is and how you will deal with these types of request in your business.

Employers Liability Insurance

It is a legal requirement for all businesses and individuals who have employees to have Employers Liability insurance in place. This cover protects employees from loss or injury while carrying out their work. As well as covering the cost of compensation, it can also cover legal expenses incurred by the business while defending the case.

This is the section of an insurance policy that you would likely engage should any employees make an allegation of negligence against you for loss, suffering or injury as a result of your approach to managing COVID-19 related health and safety. It is important to note that Employers Liability is designed to provide protection where negligence has occurred, but not protect against incidents that are proved illegal or unlawful. This is another reason you should take your duty of care to your employees seriously and follow all guidance, legislation and regulation rigorously.

It is also important you review the limit of indemnity of your Employers Liability cover. The legal minimum cover in the UK is £5 million. However, this is only the legal minimum amount and most policies are issued with a £10 million limit as standard. Given the current situation and the potential impact of a COVID-19 outbreak affecting a high number of staff, it is comprehensible that even this may not be sufficient and an increased limit of £15 million or £20 million may actually be required.

Your usual Towergate Insurance Brokers adviser can provide advice in relation to this and support you to get the cover your business needs, or email TIB@towergate.co.uk.

Public and Products Liability Insurance

While the focus thus far has been on business employees, it is just as important for businesses to meet their duty of care to customers, visitors and guests. The same principles apply, and safe practice must be evidenced, with all required regulations met.
Public and Products Liability are the parts of a policy you would engage if you were accused of negligence resulting in injury, suffering or loss to a member of the public. This includes health and safety requirements in relation to COVID-19 and having in place the necessary preventative measures to keep those in your workplace safe, as well as anyone receiving your products, for example, if an infected person contaminates the surface of a product or packaging and passes it on to customers.

Most business insurance policies will include Public and Products Liability cover, but as they are not legal requirements, many businesses could have insufficient cover. We often see businesses choose a £2 million limit of indemnity for these covers which in today’s world feels vastly insufficient. Considering the potential claims that could emerge going forward, this amount of underinsurance could be extremely damaging to the longevity of a business’ future operations.

Again, your usual Towergate Insurance Brokers adviser can provide advice in relation to this and support you to get the cover your business needs, or email TIB@towergate.co.uk.


The potential of underinsurance

There is potentially an increased risk in both the frequency and severity of incidents as lockdown begins to ease, with the additional concerns around employees catching the virus at work and taking it home to family members. As a result, the issue of underinsurance, particularly in relation to Employers, Public and Products Liability is a real danger.

We would therefore urge business owners to consider what limit of indemnity they would need should they face several claims, with varying severity. You can get policies that “top up” primary wordings by adding additional limits to specific parts of the policy, called Excess Layers. Excess layer products to increase limits are widely available in the market and typically are actually more competitive than you may think, starting at approximately £300 + Insurance Premium Tax (IPT), currently levied at 12%.

Another excess layer cover you may wish to consider is Crisis Containment Management. This cover provides professional communications expertise in the event of an incident that could trigger indemnity, delivered by an approved Crisis Communications Company. This could include internal communications to staff and external communications with the media.

Crisis containment can be invoked by a key executive of the business following an event where it is expected that damages will be caused, such as a COVID-19 related incident and could help mitigate reputational damage.

The information contained in this bulletin is based on sources that we believe are reliable and should be understood as general risk management and insurance information only. It is not intended to be taken as advice with respect to any specific or individual situation and cannot be relied upon as such. If you wish to discuss your specific requirements, please do not hesitate to contact your usual Towergate Insurance Brokers adviser.

For more information or for a full review of your insurance needs, please contact your usual 
Towergate Insurance Brokers adviser or email TIB@towergate.co.uk.