If you've watched the news recently, it would be difficult to miss the many stories about clusters of COVID-19 infections appearing in workplaces. Employers will rightly be concerned that their business could be next to face the cost of closure or halting production along with, what is likely to be, negative press attention.

But what can be done to reduce the likelihood of clusters occurring - and if they do arise, how do you reduce their impact?

Like much of the advice arising from this outbreak, it goes back to the basic principles of social distancing and hygiene. Contact between staff should be reduced to the lowest level reasonably practicable. Clearly it's not always possible to operate a business with employees two metres apart from each other. However, where that is not realistic, other mitigations must be put in place. That may be screens or, where there are no other options, PPE including masks, visors and protective clothing. It's also important to introduce and enforce regimes of environmental and personal hygiene. Those involve providing ready access to handwashing facilities and frequent cleaning of hard surfaces and touch points. There should also be careful management of work equipment to avoid sharing where possible and, if not, cleaning in between users.

But, in order to be effective, education is the answer; good training information and instruction to staff is essential. You are unlikely to gain a benefit from risk reducing measures if your staff don't know how to implement them. For the same reason, any new ways of working must also be backed up by robust supervision, to ensure that what has been put in place is being followed. The recent outbreaks and the impact of them, highlight that there's no place for complacency, and despite the fatigue we may all feel, best efforts must continue to be made to maintain social distancing.

However, no matter how careful or vigilant an employer is, there is always the risk of transmission of COVID-19 within the workplace. Should that happen, the key to limiting its impact is rapid, robust action.

Again, the importance of communication and instructions to staff cannot be emphasised enough. Employees should understand what symptoms trigger the need for isolation and testing. Those who display symptoms at work should be advised howto leave the workplace safely and be supported in doing so, wearing a mask if possible and travelling home without the use of public transport. They should be directed to obtain a test and to self-isolate for the appropriate period. Thereafter it is up to NHS Test and Protect to identify close contacts and to instruct them to isolate.

The efficacy of Test and Protect and self-isolation is dependent on a workplace culture that allows people to feel safe in reporting symptoms, obtaining tests and thereafter self-isolating. The Scottish Trades Union Congress has prepared, along with the Scottish Government, a fair work policy. This includes protecting income during periods of absence for self-isolation, protecting future sick pay entitlement and not allowing absence for COVID-19 related symptoms to have an impact on sick leave related action.

Encouraging a culture of openness and honesty around symptoms, combined with a lack of sanction for having symptoms or needing to be absent from work, is likely to foster good behaviour in employees and avoid a situation where staff suspect they are infected but continue to work normally anyway. A willingness among workers to be open about contact, or even breach of social distancing in the workplace, will assist you in avoiding widespread transmission within your business.

Although NHS Test and Protect will advise who should self-isolate, you should have your own policy that requires workers who have been within a specificed proximity to a suspected case to leave the workplace. A culture of honesty about contact should also allow you to identify others who, unknown to you, have had incidental close contact with a suspected case. Acting quickly and decisively once someone is suspected to have COVID-19 will offer you the best chance of getting the situation under control, before you have widespread transmission.

From a claims defensibility perspective, taking these steps will not only reduce the risk to your business, it should also provide a strong basis from which to argue that you have fulfilled your health & safety duties in the event that claims are made against you.

Unfortunately, there is no easy answer to the situation in which we find ourselves but by being careful, vigilant and open you will minimise the likelihood and impact of COVID-19 on your business. At Brodies we are committed to providing you with the best advice and practical assistance as you navigate these uncertain times. We have designed our Covid Claims route map to provide a useful visual guide for that journey.


Kate Donachie

Legal Director