Since being declared a pandemic by the on 11 March 2020, COVID-19 has impacted our working lives more than we could have imagined. Although some of us have been able to work from home, those classed as key workers have been on the frontline of this pandemic. However, what happens if an employee was to be exposed to and contract COVID-19 during their course of work?
Employers have a duty of care towards their employees which means that they must take measures in order to prevent any reasonably foreseeable injury happening to them. This is covered by both common law as well as various forms of health and safety legislation. In order to ensure reasonable steps are being taken to protect employees, employers must complete risk assessments of their workplace. Typically, this would vary from industry to industry but with regards to COVID-19, the Health and Safety Executive have advised that all workplaces must:
Considering this, it is therefore possible that one could have a claim against their employer if they did not take reasonable steps in carrying out their risk assessment and making your workplace safe.
In order to be successful in any personal injury action, the pursuer must prove beyond the balance of probabilities that:
Although this may seem fairly straightforward, one difficulty that is often raised in personal injury cases, especially those of an occupational disease nature, is that of causation. Causation is the third of these four tests which must be satisfied in order to prove liability against an employer. It is often known amongst lawyers as the “but for” test. For example, the injury or disease would not have occurred BUT FOR the negligence of the employer.
An example of a case where this can be clearly illustrated in regards to COVID-19 is that of Belly Mujinga, a Transport for London employee who was working in the concourse of Victoria Station on the 22 March 2020, the day before the UK went into lockdown. It was on this day that Ms Mujinga and another fellow employee were spat on by a man who claimed to have the virus. Ms Mujinga, and a fellow employee who was also assaulted, then both fell ill with COVID-19 within days, with Ms Mujinga then being admitted to hospital and placed on a ventilator on the 2 April. Belly Mujinga then died from COVID-19 three days later. Her family claim that had TfL supplied adequate PPE and allowed her to continue working from the ticket office where she usually worked, rather than the concourse of Victoria Station, then she would not have contracted the virus from the man who assaulted her. Although it is unclear whether any proceedings have been raised against TfL by Ms Mujinga’s family at this time, it can be argued that Transport for London breached their duty of care of Belly Mujinga by not supplying PPE and making her work in a crowded area. But for their negligence in failing to provide PPE and a safe working environment, Ms Mujinga would not have contracted COVID-19. Although the legislation in England is slightly different, in Scotland under the Damages (Scotland) Act 2011, family members can claim for damages if they suffer the loss of a loved one as a result of negligence by another party and it is likely we will see many cases like this progress as the fallout from the pandemic continues over the coming months.
Unfortunately, this is just one example of the thousands of workers who have contracted COVID-19 through their workplace. As of the 17 October, there have been 11,278 dwhere occupational exposure is suspected to the Health and Safety Executive, along with 162 deaths. Alarmingly, over three quarters of these have been for those working in the Health and Social Care sector which includes hospitals and care homes. Although these are the industries where one may expect adequate PPE, these statistics, as well as media reports highlight that there have been significant failings here, both by private companies and the UK Government themselves. The latter is especially significant considering the delay and then lack of PPE which was made available to the NHS during the peak of the pandemic.
If you or someone you know have contracted Covid-19 at work and suffered serious illness or lost a loved one as a result, then you could be entitled to compensation. Our experienced personal injury solicitors continue to monitor the situation and keep abreast of the latest legislation in Scotland and will be able to advise if you might be eligible to make a claim. Contact us today on 0141 375 1222 or to speak with an expert.
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