The insurance industry is in a state of uncertainty as it considers the potential effects of the COVID-19 pandemic on their sector. Fears that the crisis could manifest on a similar scale to the PPI mis selling scandal of recent years is a ‘very real concern’. In an interview I undertook recently with a prominent insurer it was clear that the industry is both ‘very cautious’, and ‘very concerned’.
Can a business protect itself from claims?
The concern stems from the confusion and uncertainty caused by this unprecedented sequence of global events combined with evidence of a ‘fragmentation’ in the insurance market. Whilst statute is clear that you cannot add exclusions to Employers’ Liability Insurance, anecdotal evidence suggests it hasn’t stopped some insurers from trying to do just that. Anecdotal evidence again indicates that some ‘ambulance chasing’ solicitors have already drafted claims letters for use against employers, citing vicarious liability for any sickness caused by exposure to COVID-19 following a return to the workplace.
Can a business protect itself from vicarious liability claims from its employees? The answer is, of course, yes. It is the job of the employer to provide and maintain ‘a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work’ (HASWA 1974). With a focus on claims defensibility, the key document required by a business is an up-to-date and thorough COVID-19 risk assessment that is regularly reviewed.
What it means for building owners and managers?
For owners and managers of multi-tenanted buildings, the COVID-19 risk assessment must ensure that not only are appropriate risk management procedures in place, but also that they are sufficiently monitored to ensure that they are effective. It is of little use to restrict the use of a lift to two persons, and then more than two regularly ride together, or to provide a hand sanitiser station that gets ignored or runs out. Regular checks and inspection will improve defensibility, as will a proactive approach to risk management.
Good risk management is at the core of a well-run and safe workplace. These are unprecedented times, however, by walking surely and steadily, businesses can succeed and potentially emerge stronger. If your business needs help or guidance, make sure to reach out for it and get the support that your business and your employees require.
Peter Clark is Lead Health and Safety Management Consultant at Ark Workplace Risk.
If you would like further information on returning safely to the workplace, or would like to book a COVID-19 Risk Assessment, call + 44 (0) 20 7397 1450 or email firstname.lastname@example.org.