A Balancing Act

Together we are Forbes

Article

01 May, 2020

Exploring the potential for personal injury claims against an employer arising from the COVID-19 personal protective equipment (PPE) shortage.

It is important to remember that these are unprecedented times and there has had to be a quick response by employers to an evolving and dangerous situation. This has to be balanced against the hard work of individuals striving to do the right thing in times of immense pressure.

The lack of PPE is currently in the news in relation to frontline workers; NHS staff, bus drivers and carers to name a few. Sadly, there have been some deaths of key workers working at the coalface.

The key issues revolve around the availability, appropriateness, fit and suitability of the PPE, and whether the wearers are being trained properly in the use of it.

Most of us are lucky enough to be able to avoid the risks by social distancing or working from home. For the majority there is no need for PPE, but for those on the front line this is a crucial part of their protection, where disinfection and washing of hands alone simply isn't enough.

In law there are various statutes and directions that offer guidance on how these cases might be approached. The starting point is the Personal Protective Equipment at Work Regulations 1995, the Codes of Practice , and the Employers Liability Defective Equipment Act 1969.

On the 24th of April , The British Medical Association reported a shortage of appropriate equipment for doctors working in ICU, HDU, and respiratory wards, and pressure to work without it.

Employers have a duty to risk assess the situation but the problem is evolving daily.

Stock availability is an ongoing issue, but in the rush to secure suppliers, questions over suitability may be overlooked. We have all heard stories of fashion houses adapting enterprises to meet the need. But are all those suppliers capable of dealing with the risks involved?

Kit has been obtained in a rush without the same stringent control measures.

Where resource is limited, should more vulnerable employees be required to wear extra PPE , or prioritised for provision?

During the pandemic we have heard stories of the reuse of equipment designed to be single use. There has been changing advice as to the nature of equipment needed.

Where was the virus contracted?

Despite these shortfalls, the more difficult element of the claim to prove may well be where the virus was contracted. Clearly this will prove difficult when there are multiple parties in a household that have been to places other than home, when the infection is so easy to transmit. Since social distancing measures, infection has fallen. Testing is a means of tracking. It will be easier to pinpoint when the infection was contracted.

There will always be competing risks for the courts to balance.

They are likely to be sympathetic to the factual background and will look to whether what the employer has done has been fair, just and reasonable in the circumstances, whilst looking at the extent to which the harm was foreseeable.

We expect that, amongst other issues, they will look at;

  • What employers did and when?
  • What attempts were meant to obtain PPE or substitute it?
  • What reasonably practicable steps were taken?
  • Is the motivation to stay open, profit?

A care home has a contractual as well as a common law duty of care to its clients, the NHS shares that tortious duty. Neither could simply shut shop.

As and where possible, have employers made a contribution to the national effort to stop the virus by reducing opening hours?

Can an individual shoulder be to blame?

Yes, if they don't follow training or wear personal protective equipment as advised.

The crisis has seen retired medics return to the front line. Some are in at risk groups. Should those individuals be self-aware of their own vulnerability and the PPE problems? Should there be guarded more carefully or is it their risk? Should they be deployed to lower risk areas? It will be difficult to say that they have consented to negligence.

There are two sides to the coin in the ongoing debate.

For more information contact Leonie Millard in our Personal Injury department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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