Richard Brown | Finch Consulting

RIDDOR and the Impact of Covid-19

This article has been jointly written by Finch experts, Susan Dearden and Dr Richard Brown, to highlight the impact that COVID-19 may have on reporting under RIDDOR.

The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR) requires employers and others in control of workplaces to report and keep records of certain categories of injury (including fatal injury), incident and disease attributed to their businesses or business premises. Most businesses will be familiar with this obligation and have arrangements in place to ensure compliance.

There have always been “grey” cases in which it is unclear whether or not the obligation to report has been triggered, and a reasonable concern that if you report unnecessarily, it may lead to an investigation and prosecution.  An emerging area of uncertainty however is in what circumstances COVID-19 infections in staff are RIDDOR reportable.

This article explores that issue in practical terms and considers the potential consequences of failing to make a required report.

Is COVID-19 reportable?

Recent HSE Guidance suggests that there are three possible circumstances in which it feels  that COVID -19 may be reportable under RIDDOR.

1.  Unintended accident at work led to possible or actual exposure to the virus which would need reporting as a dangerous occurrence.

2. Reasonable evidence to suggest an employee’s diagnosis of COVID-19 was caused by exposure at work. This would need reporting as a case of

3. Death of an employee as a result of occupational exposure to the virus.

Dangerous Occurrences

These are defined in Schedule 2 to RIDDOR and include,

“Any accident or incident which results or could have resulted in the release or escape of a biological agent likely to cause severe human infection”

The HSE’s example of where this might occur is a lab worker accidentally smashing a glass vial containing the virus, leading to exposure.  That is such a limited example it is of no use to most except that it may be an indication that the HSE intends to interpret this narrowly.

More relevant to workplaces generally would be the question of whether, if a worker, subsequently found to be infected with COVID-19,  emits an unprotected cough or sneeze in the vicinity of others in the workplace, could that be regarded as a reportable incident?  It seems that the virus is spread by infected droplets, and even a 2m distance between workers may not be an effective control measure according to some medical research . It is also clear that coughing and sneezing, without covering the nose and mouth, particularly during a coronavirus pandemic, is being punished in criminal courts across the world as an assault where the direction of the cough or sneeze has been deliberately directed into another’s face – in the UK, see this news report as an example.

Although work-related incidents clearly include acts of non-consensual violence to people at work (which a deliberately directed unprotected sneeze may be) the HSE’s Guidance on RIDDOR INDG-453 makes clear a report is only required when:

  • “The accident is work-related; and
  • It results in an injury…which is reportable”

Even though a deliberately directed sneeze may technically be an assault and be work related in a way that an unprompted accidental sneeze is not, it only needs to be considered for reporting if deliberate (which makes it work related) and if it caused a reportable injury.  Regulation 4 of RIDDOR sets out what would be a reportable injury and that includes something which causes someone to be incapacitated for routine work for more than 7 consecutive days.

Dangerous occurrence reports can to be submitted to the HSE here.

Disease

Coronavirus is not an occupational disease listed in Regulation 8 as a disease which requires automatic reporting.  The listed diseases include for example occupational asthma, HAVS and other WRULDs.

However, regulation 9 of RIDDOR requires the reporting of, “any disease attributed to an occupational exposure to a biological agent”.

According to regulation 2 of the Control of Substances Hazardous to Health Regulations 2002 (“COSHH”) biological agents include any micro-organism which may cause infection.  That definition would on the face of it include COVID -19.

If an employee is diagnosed with the disease, this does not make it automatically reportable under regulation 9.   Key to triggering the requirement for a report is that the disease is attributed to an occupational exposure.  Clearly COVID-19 can be contracted from a variety of sources – how certain of a connection with work would you need to be to trigger this reporting requirement?

You do not need to be certain.  But it does need to have been likely that the virus was contracted through work for it to be notifiable.  The INDG453 Guidance from the HSE states, “Employers and self-employed people must report diagnoses of certain occupational diseases, where these are likely to have been caused or made worse by their work.”

Although the HSE’s guidance on RIDDOR reporting on COVID-19 gives as an example of a reportable disease a health care professional diagnosed with the virus after treating patients with COVID-19 (which again is for most an unhelpfully specific example) this is something you need to think about.

Factors to consider to ensure that you can meet your reporting obligation in this areas might include:

  • Are reports of COVID-19 infection being shared by HR (to whom sickness absences are most usually reported) with your H&S manager or person with the responsibility of lodging RIDDORs for your business? HR collect sick leave information for other purposes and may not appreciate that there is a need to pass on this information for consideration of reporting.
  • Is this an isolated infection (which would tend to indicate it was not contracted in the workplace)
  • If not an isolated infection among staff, was each infected individual in work within 14 days prior to their symptoms emerging? If not, then again it would tend to suggest that this was not an infection contracted at work
  • What protective measures were in place in the period prior to infection and how effectively were they monitored? For example were those at work maintaining social distancing, were additional cleaning measures in place for items that are touched regularly, were staff required to wear gloves/masks and was guidance in place with the facilities for regular and thorough handwashing with soap?

These issues may help you to a view as to whether or not it is likely that any particular infection was generated from the workplace

I would recommend that whether or not you need to report, you do record each known employee COVID-19 infection as part of your ongoing review of the efficacy of the protective measures in place.

Disease reports can be submitted here

Fatality from COVID-19

Regulation 6(2) of RIDDOR requires a report to be submitted where anyone dies as a result of occupational exposure to a biological agent.   As discussed above, COVID-19 falls within the definition of biological agent.

The HSE’s Guidance on RIDDOR reporting of COVID 19 suggests that if a worker dies as a result of exposure to coronavirus from work and this is confirmed as the likely cause of death by a medical practitioner, then it must be reported (usually by telephone followed up by the online report).  The same considerations discussed above in relation to a decision as to whether infection can be said to be likely to have been caused by exposure from work, apply here.

Fatality due to exposure to a biological agent at work reports can be submitted here.

Consequences of Failure to Report

A failure to report a notifiable circumstance is a criminal offence.  Punishment on conviction will be determined by the Courts in accordance with the H&S Sentencing Guideline taking account of whether or not the breach was deliberate, the period over which the breach endured and whether anyone was put at risk as a consequence of it not being reported with the opportunity for the regulator to investigate and enforce any non compliances.

Failures to report often come to light on routine inspections, on subsequent investigations of incidents, and also very often when disaffected staff report the issue (e.g. when they hold any kind of grudge, or when leaving the business).

Since the 2013 regulations came into force, there have been 14 convictions achieved by the HSE for breach of RIDDOR – normally prosecuted in conjunction with other offences.  These statistics do not include breaches prosecuted by other regulators, particularly local authorities as that information is not readily available.  Fines imposed in the HSE cases have so far ranged from £0 to £40,000 (but bear in mind that low fines attributed to RIDDOR convictions are because a total fine is given for several offences prosecuted at the same time and the bulk or all of a much more significant fine is sometimes attributed to those other breaches).

If fines up to £3,000 are excluded from consideration, the average fine is just under £20,000 after mitigation (before early guilty plea discounts are applied.)  In addition, there are prosecution and defence costs to pay.

Don’t forget that:

  • a deliberate decision not to report would be a serious aggravating feature of a conviction
  • past fines are not an indicator of potential penalty. The Court on conviction will follow the Sentencing Guideline and while the highest level of fine in a guideline band for breach of RIDDOR would be unlikely, the starting point for a large business, for a deliberate breach may well be hundreds of thousands of pounds.

Summary

If a COVID-19 infection is likely to have been caused by exposure to the virus at work then it may need to be reported under RIDDOR.  At the very least, where this is a possibility, it would be prudent to keep a record of it since the recording requirements under RIDDOR, according to INDG453 ensure, “that you collect sufficient information to allow you to properly manage health and safety risks.”

If you have any questions arising from the matters included in this article or would like further information please contact Finch Consulting on 01530 412777 or Email.

Susan Dearden

Health & Safety Specialist Solicitor

Susan.dearden@finch-consulting.com

Dr. Richard Brown

Health & Safety Expert

Richard.brown@finch-consulting.com