We analyse how the conflicting guidance from the HSE in RIDDOR reporting and how the cautious approach by employers may create more harm for businesses further down the line.
The cause of over-reporting
The marked increase in the reporting of COVID-19 cases by businesses stems, in part, from ambiguity surrounding an employer's reporting obligations under RIDDOR during the pandemic. The confusion is due to the HSE's burdensome Guidance (the 'Guidance') and its divergence from the legal requirements for reporting. This has resulted in businesses taking an over-cautious approach to reporting.
For an incident to be reportable under the RIDDOR legislation, an employer must receive a diagnosis in writing from a medical practitioner stating that an employee had COVID-19 that was attributable to occupational exposure. Given that COVID-19 is a community-based disease, it would be difficult for any medical professional to conclude that a diagnosis would be attributable to occupational exposure. As such, when following the letter of the law, few COVID-19 cases (if any) would be reportable under RIDDOR by employers.
However, contrast this with the HSE's Guidance. This provides that the employer must make a judgement based on the information available as to whether or not a confirmed diagnosis of COVID-19 is likely to have been caused by an occupational exposure. The Guidance ultimately removes the requirement for a diagnosis to be confirmed by a registered medical practitioner. This shift away from what the law requires undoubtedly encourages employers to misconstrue that all cases of Covid-19 amongst workers must be reported under RIDDOR.
Businesses will also face further pressure to RIDDOR report from societal and reputational pressures, which encourage businesses to be over cautious. No business will want to be headline news for being at the centre of an outbreak but, if they are, then the cautious and responsible decision would be to report it to the regulator, notwithstanding the lack of any confirmation that the outbreak was attributable to occupational exposure. Additionally, employers are understandably erring on the side of caution when deciding whether to submit RIDDOR reports as the consequence of making a mistake carries criminal sanctions. However, it must be remembered that the law trumps the Guidance. Companies will not be sanctioned in law for not following the Guidance. That being said, prudent businesses will want to ensure their reporting policies are reviewed so they can demonstrate reasoned decision making if asked.
COVID-19 disease reporting statistics
As a consequence of the Guidance and above pressures, many employers are being advised to report COVID-19 cases that they are not legally obliged to. Such an anxious over-reporting environment has been evidenced by the HSE's COVID-19 disease reporting statistics, released on 11 July 2020. The statistics record 7,971 disease notifications of COVID-19 in workers where occupational exposure is suspected between 10 April 2020 - 11 July 2020. This is an unprecedented amount and to put it into context with the figures for the previous year for non-fatal injuries, it highlights that RIDDOR reporting has increased by as much as 50% compared to this time last year. Our analysis of the data also shows that COVID-19 notifications are being submitted nearly twice as much as the current highest category of notifications, that being slips and trips in the workplace, yet it is anticipated that the majority of such notifications were submitted in cases where the legislative threshold for reporting was not met. Unsurprisingly, 75% of notifications are in the healthcare and care sector but the question remains whether those reports were as a consequence of a diagnosis attributable to occupational exposure by a registered medical practitioner (the legal test).
Reporting in circumstances where the legal obligation has not arisen gives rise to unnecessary regulatory scrutiny and potential investigation of businesses. A report is usually the first step in attracting scrutiny by the regulator, whether it be the HSE or the Local Authority. If not handled correctly, over-reporting additionally raises a risk that companies may inadvertently create a causation trail demonstrating that workers contracted COVID-19 from work activities or the workplace environment in existence at the time of the report. As a result, a RIDDOR report is essentially the first step in admitting employer's liability for COVID-19 cases attributed to their workplace. Needless to say, this could be harmful to a business later on both in terms of criminal enforcement action and also in relation to any civil claims that arise.
The starting point for all businesses is to implement a RIDDOR specific policy for COVID-19, which is written in accordance with the legislation, rather than the Guidance. As such, the policy would require that, if you have received a medical diagnosis that concludes an employee has COVID-19 as a result of occupational exposure, then it would be reportable. In the absence of such diagnosis, there would be no duty to submit a RIDDOR report.
Whilst those who are subject to the reporting requirements under RIDDOR must make their own independent evaluation, we anticipate that by following the legislation there will be fewer COVID-19 cases reportable under RIDDOR, if any. As such, any risk of creating a causation trail or unnecessary regulatory scrutiny would be greatly reduced.
The business can then focus on assessing the risks presented by COVID-19 in its workplace, implementing the necessary control measures and communicating with its employees to reassure them. The continued development of COVID-19 and its impact means that businesses need to constantly review the measures they have in place in accordance with the guidance applicable at the time.