Coronavirus RIDDOR reporting demands forensic analysis

While the guidance will offer some comfort to employers and specifically to duty holders under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR), careful examination of the facts in each case is necessary to understand whether a relevant reporting obligation under RIDDOR is triggered.

There is no one-size-fits-all approach that can properly be applied to every instance. Instead, a measured and evidence-based approach is essential in assisting the duty holder to decide whether something should be reported or not.

Covid-19 and sectors where RIDDOR is likely to be relevant

As we have seen over recent weeks, Covid-19 is a global pandemic with the potential to affect the health of society at large, including workers and non-workers, young and old. It would be wrong to assume that all cases of Covid-19 in a workplace context do not need to be reported to the HSE or other relevant regulators. Equally, it would be an over-simplification to adopt the position that all cases of Covid-19 amongst workers must be reported under RIDDOR.

As is often the case with RIDDOR, the judgement as to whether a case of Covid-19 is reportable will be a finely balanced one, not least because the consequences of making a mistake could be serious. Failure to report a case which meets the legal threshold may constitute a criminal offence which carries the potential for an unlimited fine. Conversely, over-reporting – i.e. reporting in circumstances where the legal obligation had not arisen could give rise to unnecessary regulatory scrutiny or investigation and distorted reporting statistics.

It is anticipated that the majority of Covid-19-related RIDDOR reports will arise in the care sector, or within a healthcare or a scientific research context, where it can more readily be established that a dangerous occurrence or disease was work-related. It would be unwise, however, to exclude the possibility that duty holders in, for example, the construction, facilities management, retail, waste or transport sector etc would be required to make a RIDDOR report in particular circumstances. Outside the more obvious healthcare scenarios, difficult decisions will need to be made on whether a particular incident is reportable.

The law

RIDDOR requires the 'responsible person', essentially the employer or, for the self employed or others, the person in control of the workplace, to report a variety of work-related events. To ensure compliance with RIDDOR, whilst also avoiding an unnecessary report, the responsible person must first understand the potential triggers for the reporting obligation to arise. Then they must examine the facts of each case carefully to determine whether each limb of the relevant threshold for reporting has been met.

The government has added Covid-19 to the list of notifiable causative agents under the Health Protection (Notification) Regulations 2010. In addition, under the Control of Substances Hazardous to Health Regulations 2002, coronavirus has been identified as a biological agent as part of the HSE's supplementary list of defined agents. Consequently, in relation to Covid-19, there are three potentially relevant obligations:

• The requirement to report any dangerous occurrences, which includes 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 or illness. This arises under Regulation 7 (schedule 2, paragraph 10 of RIDDOR;
• The requirement to report a diagnosis of any disease attributed to an occupational exposure to a biological agent. This arises under Regulation 9(b) of RIDDOR; and
• The requirement to report work-related fatalities which result from exposure to Covid-19, principally by way of the incidents mentioned above. This arises under Regulation 6(2) of RIDDOR,

The HSE has indicated that, where one of those three types of cases applies, a RIDDOR report must only be made when:

• An unintended incident at work has led to someone’s possible or actual exposure to coronavirus. This must be reported as a dangerous occurrence. An example would be a lab worker accidentally smashing a glass vial containing coronavirus, which results in, or could result in, the release or escape of coronavirus;
• 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. An example would be a health care professional who is diagnosed with Covid-19 after treating patients with Covid-19 where they were likely exposed, or;
• A worker dies as a result of occupational exposure to coronavirus.

The question of when or whether to report a Covid-19 incident is complicated by the novel nature of the pandemic. Employers should seek legal advice if they are unsure whether a particular case is reportable.

Two fundamental considerations

Two elements of the reporting requirement merit particular attention from responsible persons.

Firstly, there must be a written medical diagnosis of COVID-19 before the reporting obligation under Regulation 9(b) arises. In the absence of mass testing, diagnosis of the kind which is required by RIDDOR is unlikely to exist in the majority of cases. Currently, without such a diagnosis, the reporting threshold will not be met, regardless of whether a suspected case of COVID-19 appears to be work-related.

The HSE has recently updated its guidance on this, however, to reflect the fact that many cases of COVID-19 are currently being confirmed without a registered medical practitioner’s written diagnosis, for example, on the basis of laboratory test results. The HSE has decided to adopt a pragmatic approach in the current highly unusual circumstances and not require those results to be confirmed by a registered medical practitioner before a report is made under RIDDOR. Accordingly, its guidance now states that responsible persons should consider any official confirmation of COVID-19 infection such as from a public testing body as being equivalent to a registered medical practitioner’s diagnosis.

Secondly, the requirement to report does not arise simply by virtue of an instance taking place on work premises or because someone had been 'at work' in the period prior to any potential exposure to or diagnosis of Covid-19. There must be a nexus or likely link between the dangerous occurrence, disease or death and the work activity or environment that was in existence at the time.

It is possible to misconstrue the HSE's recent guidance on this as directing that a report of a dangerous occurrence must be made whenever the unintended event happens "at work", or similarly when the person diagnosed with Covid-19 had been "at work" in the days or weeks preceding their diagnosis. That would be an over-simplification. This is because 'work-related' requires more than simply being "at work". Quite what this means in practice will, however, depend on the facts in each case.

A forensic analysis of the available evidence regarding the nature and method of the work that was being carried out at the time by the people in question is the best way to make these difficult judgement calls. Relevant factors are likely to include:

•  the extent of the affected person's contact with others; 
•  whether social distancing of two metres or more was possible and implemented consistently; 
•  the extent to which the employer was able to follow Public Health England or other industry guidance; 
•  the availability of hand washing facilities, appropriate signage and adequate PPE; 
•  whether any training was needed and provided, and; 
•  whether there is evidence that people displaying symptoms of Covid-19 had been in the workplace. 

Answers to these issues should help the responsible person to determine whether a case is 'work-related' and therefore reportable, or not.

The necessary judgement call

Outside the more obvious healthcare scenarios in particular, difficult decisions will need to be made on whether a specific incident is reportable. The following examples illustrate the types of situation that may need careful scrutiny and consideration whether, on the particular facts, the relevant thresholds for reporting have been met:

• A vehicle transporting samples from suspected Covid-19 patients overturns whilst reversing in a busy car park and releases smashed vessels in the surrounding area. The pertinent question here is whether this is reportable as a dangerous occurrence under Regulation 7 of RIDDOR?
• A waste management facility was responsible for the disposal of hazardous waste from a nearby hospital which included used equipment, syringes and PPE such as soiled gowns and visors following the treatment of Covid-19 patients. Procedures were not followed at the waste management facility. This meant that the bags were left in an unsealed state for several days during which time multiple workers handled the waste. The question here is whether this case is reportable as a dangerous occurrence under Regulation 7? Responsible persons should also consider what the position would be if an employee subsequently called in one morning to say they were self-isolating as they had a persistent cough.
• A first aider on a construction site was tasked with providing first aid to the workforce as and when required and in circumstances where close physical contact was necessary. The first aider was subsequently diagnosed with Covid-19. The question in this case is whether the case would be reportable as an occupational disease under Regulation 9(b) of RIDDOR.
• A facilities manager is required to carry out a variety of inspections within a portfolio of care homes to ensure regulatory compliance. The manager subsequently dies and a medical practitioner confirms that the death was caused by Covid-19. The employee had been coming into close contact with residents who were themselves sufferers of Covid-19 or suspected sufferers. The question in this case is whether the death would be reportable as a work-related fatality under Regulation 6(2) of RIDDOR.

Conclusion

The HSE is understandably keen to avoid anxious over-reporting in an environment where the actual source of infection may be very difficult to pinpoint. The Office of Rail and Road has gone so far as to say that it "is working on the assumption that, with widespread societal spread, very few cases will need to be reported under RIDDOR". With health and safety obligations unchanged by the onset of a pandemic, however, duty holders must be mindful of the strict letter of the law.

Where the need to submit a RIDDOR report is being scrutinised, careful consideration and documentation of the facts, and the ultimate reporting decision, is advisable. Recording the reasons why a report was not submitted may prove a worthwhile exercise if any questions are asked by regulators later on.

There are certainly no quick and easy answers to the question of whether a potentially wide range of circumstances could give rise to RIDDOR reports. The problem will not go away in the foreseeable future either when the nation eventually emerges from the lockdown.

Kevin Bridges, Zoe Betts, Fiona Cameron and Simon Tingle are health and safety law experts at Pinsent Masons, the law firm behind Out-Law.