Over the years the protection employees have had in relation to accidents during the course of employment has diminished. The Health and Safety at Work Act 1974 came into force to provide protection to employees. It was further strengthened in the 1990’s with a realm of Regulations under EU Law known as the “six pack regulations”. However the Enterprise Act 2016 meant that the six pack regulations were no longer applicable and concepts such as “Strict Liability” for a defective piece of work equipment which caused injury was eradicated. Prior to the Enterprise Act an employee only had to prove that the equipment which caused his/her injury was defective to win their claim. Now the employee has to show that the employer failed to take reasonable care to provide safe plant and equipment thus making a claim more difficult for the claimant.

Where the allegation has been that there is an unsafe place of work or an unsafe system of work, the test has always been has an employer taken “reasonable steps” to minimise risk. Reasonable steps take into account the size of the employer’s business, the known risks, near misses/ previous accidents, industry norms for standard methods of work and standard pieces of equipment used for example. Thus a lot of knowledge if accrued over years of similar practices.
Construction workers have predominantly been very vulnerable when it comes to accidents at work. The government agency’s figures showed that in 2019 30 construction workers died at work. Equating to 1.31 deaths per 100,00 workers, the figures were compiled using RIDDOR (Reporting of Injuries Diseases and Dangerous Occurrences Regulations) data- Health and Safety Executive (HSE).

Commenting on the HSE’s figures, Vizwear said the damages caused by health and safety failings in the construction industry resulted in over UK£1 billion (€1.17 billion) worth of costs a year, and that continued investment in health and safety would further reduce dangerous incidents. Daniel Ure from PPE company Vizwear, said, “Certain roles naturally present more risk than others. In most cases, workers take all the necessary precautions to reduce that risk as much as possible. However, some industries are failing to keep up — and the results are deadly.

The construction industry came in third place behind the waste and recycling industry, which was recorded as the second most dangerous industry in the UK with 6.05 deaths per 100,00 workers. Agriculture ranked number one with 9.21 deaths per 100,000 workers and 32 fatalities so far in 2019. While the industry is the third most dangerous in the UK, it is also the most improved. Of the number of fatalities recorded each year to date, 2019 saw the lowest number of fatalities on record. According to the HSE, falls from height accounted for almost half of all deaths in construction. Although it may sound bleak, the UK remains one of the safest places to work in the world in the arena of construction.

However will the 2020 statistics read the same after Covid 19? Is construction of any structure other than an emergency hospital in the current climate “essential work”? Can it be done safely? Can there truly be “social distancing” on a building site? More importantly can these employees get to their building sites without the use of public transport? All those images in the media of workers on the tube and congested trains attempting to make their way safely to work?

Accidents tend to occur in most Construction sites due to time pressures. When asking a potential claimant about why their accident occurred on day 1 of their employment or day 25 – there always seems to be a common theme-time pressure. Inadequate training was provided on day 1 as under time pressure, day 25 someone else cut a corner because the project was behind the time schedule for completion. Time pressure is certainly an issue which the UK and the world are under at the moment. Will there be enough time to make enough ventilators before the pandemic peaks, is there enough staff in a business to manage the orders now that a number of other employees are self isolating? If Mr A injuries his back at BAE systems due to an impractical system of work brought in quickly to change from making ammunition and artillery systems to ventilators rushed in due to the Covid 19 pandemic will the fact there was a global pandemic be a valid defence to an industry sustained injury ?

While there has been pressure on the Government to officially declare construction workers non essential workers the same has not happened. What then of medical causation? All Employees must show that there injury was “caused by the negligent act”? What happens if a construction worker catches Covid 19? If a construction worker is social distancing in all other areas of his home life and is maintaining his 2 metre distance at work but still catches Covid 19- how has this occurred? – is it his commute to work on public transport. Will his journey of choice now be the responsibility of the Employer? Did the Employer by providing the instruction that the construction worker must come to work be liable then for the commute?

Health and Safety Executive guidelines do not classify driving to work as driving for work, meaning companies do not, legally, have a duty of care to employees for the duration of their commute.

“Research has found that more police die when driving to or from work than they do at work or when fighting crimes; and more firefighters die driving to or from work than when fighting fires.”.

“For example, Transport for London employees have Oyster cards and are encouraged to use public transport,” “Many other organisations also encourage the use of public transport, and carrying out a travel survey to find out how people commute and then help them get to work in different ways can make a difference.” Many Employers support cycle to work schemes.

Medical research has shown that encouraging employees to use forms of commuting other than the car can have health benefits. The research found: “Men and women who commuted to work by active and public modes of transport had significantly lower BMI and percentage body fat than their counterparts who used private transport.”

However the opposite can be said during the global pandemic. Employees if they cannot work at home are being encouraged to not take public transport, to drive instead so they can maintain social distancing rules.

What remains to be seen is how the Courts will assess employers actions during Covid 19. Employers remain liable to their employees to provide a safe system of work, a safe place of work. Social Distancing may be a novel concept but it is in reality no different to a lot of risks known in a lot of employments already. Whether or not the construction industry have got it right remains to be tested and analysis will be required of any accident at work by looking to their risk assessments when instructing employees to remain at work/ change their method of work.

Seeking legal advice early within the claim can greatly enhance a claimant’s prospects of recovering compensation from an injury sustained at work whatever the circumstances. If you have been injured through an accident at work, contact Ralli Solicitors for help and guidance.

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