Legal briefing: COVID-19 and RIDDOR – where do you draw the line?

As with many other aspects of this pandemic, guidance on reporting COVID-19 infection in the workplace has gone through many changes. The rules around reporting under RIDDOR appear to have settled now, but it remains a matter of judgement for employers as to whether they report if there are cases in their workplace. This is what needs to be taken into account when making that decision.

What must be reported?
COVID-19 is reportable in three scenarios. First, an accident or incident has, or could have, led to the release or escape of coronavirus. This is a dangerous occurrence. Second, a worker is diagnosed with COVID-19 attributed to occupational exposure. Diagnosis
can be from a doctor or via an official test result. This is a case of disease.
And third, a worker dies following occupational exposure to coronavirus. This is a work-related death due to exposure to a biological agent.

The employer’s decision
For most businesses, reports will be in the context of disease. One or more employees will contract COVID-19 and the organisation will have to decide whether it was work related. This is a judgement to be made on available evidence. There is no need for detailed investigation. To help, HSE has issued guidance that states:
• A report is only required where it is more likely than not that work was the source of exposure.
• There must be reasonable evidence linking the person’s work with an increased risk of exposure.

What does this mean in practice?
Businesses will need to consider each positive report and reach decisions based on
the known facts. The approach will vary from workplace to workplace and specific factors may also be relevant, for example local infection rate, means of travel to work, and so on.
Where there are multiple cases, it will be important to identify if they are related.
If they are, the COVID risk assessment and resulting control measures may need to be revisited in response.

What are the regulators doing?
HSE is receiving hundreds of COVID-19 related reports each week, although numbers are around half of those seen during the April peak. Around 80% of all worker-reported cases are in HSE-enforced sectors and the majority relate to English workplaces (84% of cases). HSE confirms that “all cases that are reported … are being assessed and investigations initiated where incidents meet [the] published Incident Selection Criteria”.

Both HSE and local authorities have been overwhelmed by additional COVID-19 responsibilities, set alongside a sustained period of budget cuts. This raises questions about their respective abilities to respond substantively to virus-related RIDDOR reports. However, businesses should remember the threat of enforcement is there and needs to be heeded when positive cases are identified. Failure to report under RIDDOR remains a criminal offence, albeit one that is rarely prosecuted.

Rhian Greaves is associate partner at Pannone Corporate LLP.

This is an edited version of an article that appeared in the December 2020-January 2021 issue of EHN (login required).