New criminal penalties for UK businesses failing to report COVID-19 cases

The Health and Safety Executive (“HSE”) has introduced new guidance which requires employers to make a report under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”) of new cases of COVID-19. The consequences of failing to report can be very severe: an unlimited fine or even a custodial sentence in the most serious cases.

The guidance requires a report to be made where either:

• “an unintended incident at work has led to someone's possible or actual exposure to COVID-19; or
• a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work.”

This will be of particular interest to those businesses where remote working is not a possibility e.g. the construction sector.

Comment

In view of the absence of widespread testing for COVID -19, businesses will be put in the invidious position of deciding whether, if an employee showing symptoms, decides to self-isolate, that the worker has been “diagnosed” as having COVID -19 and then whether this was the result of an exposure at work (as opposed to travelling to work or shopping for basic necessities etc.).

Some businesses may take the view that a diagnosis would only arise if the employee were hospitalised or, at least, had obtained an NHS 111 Isolation Note. However, in view of the potential penalties – and in the absence of further guidance from the HSE as to when the obligation to report arises, we think it is safer to take a more precautionary approach and make a report (online at hse.gov.uk) where any employee reports COVID -19-like symptoms.

A number of organisations are making representations to the HSE and Government seeking clarity on the issues outlined in this note and we are following developments in this area closely.

If you need any further assistance on any matter covered in this note, please contact Michael Hutchinson or Tim Baines.