According to the Sunday Times on 20th January 2020 the NHS faces legal costs of £4.3 billion as part of a compensation bill for clinical negligence claims of £83 billion. Despite the nation’s love in with the NHS its perhaps also worthy of consideration that that the figure quoted above will be a mere drop in the ocean once we all learn to live with the Pandemic. This is because the lawyers and claims companies will be rubbing their hands when the dust dies down and the claims start flooding in over the lack of PPE.
I had a call last week from the owner of a care home. He said he owned a care home and employ 10 people. No union members. He was concerned that prior to the COVID 19 Pandemic he did not have the requisite PPE equipment (none at all tbh!). Since the lockdown we have sourced a few but have again run out.
He is worried that he will get sued by an employee and wants to know what is his legal obligation?
The relevant regulations are the Personal Protective Equipment at Work Regulations 1992.
Regulation 4 states:
Every employer shall ensure that suitable personal protective equipment is provided to his employees who may be exposed to a risk to their health or safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.
The accompanying guidance states:
Employers should, therefore, provide appropriate personal protective equipment (PPE) and training in its usage to their employees wherever there is a risk to health and safety that cannot be adequately controlled by other means.
In order to provide PPE for their employees, employers must do more than simply have the equipment on the premises. The employees must have the equipment readily available, or at the very least have clear instructions on where they can obtain it.
By virtue of Section 9 of the Health and Safety at Work etc Act 1974, no charge can be made to the worker for the provision of PPE which is used only at work.
Section 9 of the Health and Safety at Work etc. Act 1974 states: “No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions”.
Section 9 applies to these Regulations because they impose a ‘specific requirement’ – i.e. to provide PPE
Michael Coyle is a Solicitor Advocate and MD of Lawdit Solicitors