07 May 2020

For several years now, workplaces and those in control of them have required to adhere to The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (“RIDDOR”) in terms of reporting requirements for certain serious workplace accidents, occupational diseases and specified dangerous occurrences (near misses).

Duty-holders will have established practices in place to deal with the submission of RIDDOR reports, which can be submitted online through the HSE’s website. It is well known that these reports must be submitted without delay and, in any event, within 10 days of the incident (or within 15 days where a worker has been off work for seven days as a result of the incident).

What about Covid-19? The HSE has updated its advice to assist duty-holders during the pandemic.

Duty-holders should report in the following circumstances, in the manner set out below:-

(i) Where an unintended incident at work has led to someone’s possible or actual exposure to coronavirus, this must be reported as a dangerous occurrence.

(ii) Where a worker has been diagnosed as having COVID-19 and there is reasonable evidence that it was caused by exposure at work, this must be reported as a case of disease.

(iii) Where a worker dies as a result of occupational exposure to coronavirus.

Given the large proportion of home-working in the UK, for many duty-holders this guidance will not present any immediate concerns.

For those duty-holders who are able/required to continue their operations employing social distancing and as we move towards considerations of easing lockdown, this guidance should be adhered to closely. It is, of course, a criminal offence to fail to report in circumstances where there is a duty to do so.

The new Covid-19 guidance is an attempt to provide clarity to duty-holders. Category (i) cases are perhaps the most easily identifiable. Category (ii) and (iii) cases however may be harder to assess with any degree of certainty. The guidance is silent presently on what, in category (ii) cases, would constitute “reasonable evidence”. Equally, it is silent on how duty-holders can reasonably conclude that a worker has died “as a result of” occupational exposure in category (iii).

Duty-holders who find themselves potentially falling into any of the above categories should assess carefully what information they have, record that, assess internally the reasons for non-reporting if that is the decision reached after close consideration of all the facts known to the duty-holder. Any witness or medical evidence available to inform the decision should be contemporaneously recorded. It is appreciated that resources may not allow for such a thorough process in every case, but those duty-holders who are able to follow this process will be better placed to justify (and potentially prove) why a case was not reported either during a Regulatory investigation into the matter, or in the event of a fatality, at a Fatal Accident Inquiry.

Any businesses who are in doubt, should seek urgent advice.

Contact

Vikki Watt, Partner and Solicitor Advocate E: vwa@bto.co.uk T: 0141 225 5317 

Amy Anderson, Senior Solicitor E: aan@bto.co.uk T: 0141 225 4856